June 22, 2009
The Gavel on the Initiative Process: Hubris or Adequate Balance?
The courts play an integral role in the regulation of the initiative process. In this area of campaign finance law, the Court’s willingness to support challenged regulations is based, in large part, on public perceptions of corruption. It is clear that the appearance of corruption or the public’s perception thereof is central to the Court’s calculus when deciding on the constitutionality of matters in this context. Yet, it is unclear what satisfies this corruption standard. Despite attempts to clarify this standard made by prior research, recent court opinions have undercut their efforts. Overall, this paper establishes a more current conceptualization of the corruption standard and, further, what satisfies the Court’s demands so that the empirical realities of regulation are more understood.
Underlying the overarching purpose of this research is the demand for an evaluation of the role of public opinion, especially with respect to the judiciary. In part, evidentiary burdens are assessed so it is made clear when public opinion data can be considered by the Court. Furthermore, once that public opinion data satisfies the judiciary’s evidentiary demands, it is important to understand how the Courts use and respond to public opinion. The normative and empirical behavior of the judiciary’s response to public opinion is, thus, considered. This provides for a more holistic understanding of the ballot initiative context in order to test the assertion that: the Court’s decisions fail to appreciate the empirical realities of the ballot initiative context and its regulation, particularly in terms of public opinion.