Growth and development, in general, contribute to the diversification of society itself; this creates a dilemma for both political culture and legal theory alike. Specifically, each must meet the demands of an increasingly varied populace, yet the manner in which they do so becomes constrained by the multiple demands placed upon them. A gap results from the inability of law, legal theory, political institutions, and individual actors to meet the public’s needs. The result is that law and society lag behind society, unable to meet its multifaceted demands. Law and theory, thus, have to be overhauled or augmented in order to comport with society and its needs. In some cases, mechanisms outside of simple representative governance are invented to encourage growth and stability in society. The creation and adoption of the initiative process (also referred to as direct democracy) during the Progressive Era of American democracy exemplifies the need for the creation of a tool, outside typical governance, to benefit society and meet citizen desires.
The Progressive Era of American democracy was plagued by corruption. In the Progressive Era (roughly mid-1890s to 1917), political machines developed in response to the vacuum created by unmet, varied public desires. In large part, these machines aimed to meet their own desires while, minimally, fulfilling those of society in general. In many ways, the political machines perpetuated the cycle of citizen needs not being met by government. Not surprisingly, corruption or the perception thereof, especially in the form of quid pro quos (bargains), became rife across multiple levels of society—in particular, government. Progressive reformers, as a result, attempted to curb this corruption through a series of changes in law and political and legal theory to better society’s current and future state. As a result, a method was sought to redefine the boundaries and theories of law itself to be consistent with the desires of the public.
Progressive Era reforms emerge as an attempt not only to quell political corruption, but also to simultaneously restore the public’s confidence in government; it should be noted that public confidence is vital to the U.S.’s form of governance, republican democracy. Collectively, the Progressive Era reforms that are pertinent to the issues at hand—corruption and ineffective governance— are referred to as the initiative process. The advent of the initiative process establishes the foundation of the manner in which reformists hoped to reconcile public confidence and political corruption, all the while, reinvigorating government. The initiative process, loosely understood, is a series of tools for the citizenry to effectuate and realize their desires. Specifically, these tools are the initiative, referenda, and recall. The initiative and referenda, although different in the manner in which they arrive on a public ballot, are single-issues that are subject to a vote by the public. The recall is subjecting either an already completed election or a vote taken in the legislature or elsewhere back to electorate—the equivalent of a voting mulligan. It also remedies past actions taken by the legislature with which the public disagrees. In short, the initiative process allows citizens to create law to meet their desires and remove unwanted or undesirable laws, actions, or elected officials. As a result of the initiative process, citizens themselves have the ability to begin this process with little intrusion by the government. An underlying goal of the reform movement is that the citizenry’s psyche is meant to be affected such that they are empowered which, hopefully, increases their participation of government. The ballot initiative process signals a significant change: citizens now can seek changes in the status quo, irrespective of non-responsive or ineffective representation, to realize their needs.

As contributions to candidates begin to wane under the pressure of court opinions, political actors reassert themselves in newfound ways to ensure the fulfillment of their political desires to the detriment of ordinary citizens; the last 30 years of American political history corroborates this.  After reviewing the last three decades, scholars contend that [w]ell-funded interests can influence the recruitment and selection of candidates; they can manipulate the salience of issues that will dominate the public agenda; and they can shape other conditions of political engagement in a way that less wealthy people cannot” (Garrett, 2002, 6). A California study showed that sixty-eight percent of all initiative campaign contributions come from lobbying interests (Du Vivier, 2007, 1048). Furthermore, spending on initiatives in California alone has spiked from “$25 million in 1982 to around $390 million in 2005” (Dempsey, 2007, 126).  Although there is not a guarantee that money increases the likelihood of success for a particular initiative, it does play an important role “in exposure and how the public perceives an issue” (Du Vivier, 2007, 1048, 1049). Considering that political elites and veiled political actors deceptively fulfill their interests without the public knowing, the power of money allows them to shape the perceptions of an uninformed public. The U.S. Supreme Court’s rulings, limiting disclosure and transparency, have provided a fertile ground for corruption to exist with deft political actors exacting their interests unbeknownst to the general public.

Even more troubling is that elected officials are inextricably bound to the initiative process. In fact, their political future depends upon it: “Now, elected officials face strong incentives to treat ballot measure contributions with almost the same importance as reelection contributions, in part because the candidate’s popularity, agenda, and political power can be heavily influenced by how those contributions are spent and which initiatives pass or fail” (Dempsey, 2007, 124).   To contextualize this, consider the extensive use of the initiative process by Governor Schwarzenegger to advance not only his own agenda, but also his political financiers. The damage is that a hopefully corruption-free tool for the citizenry to use to achieve their desires becomes infused with special interests and politicians alike; this is precisely what the Progressive era reformers sought to avoid. Schwarzenegger has been able to amass large contributions for his platforms because of the lack of campaign ballot issue contribution limits or other forms of government regulation (Dempsey, 2007, 125). As a result, candidate-controlled campaign ballot measure committees now “serve as major conduits…to put huge contributions into the hands of elected officials for use in promoting political agendas” (Dempsey, 2007, 126). California law limits donor contributions to $22,300 for governor’s election bid (Dempsey, 2007, 125). On the other hand, donor contributions are not limited with respect to the initiative process (Dempsey, 2007, 125). The result is that “a few hundred major corporate donors and wealthy individuals” gave Governor Schwarzenegger “an extra $26 million for his agenda that would have otherwise been barred” if donated for his election (Dempsey, 2007, 148). Thus, the reality is that the Governor utilizes the process to advance his own agenda, free from government regulation in many ways. Now, roughly three-quarters of Californian voters call for change in the initiative process; it is a function of big interests, leaving ordinary citizens in the fray (Dempsey, 2007, 125). It is disconcerting that candidates like Schwarzenegger no longer seek political contributions to his campaign but the initiatives upon which he is running.

In some respects, the initiative process allows a politician a second bite at the apple when they have lost in other mediums. It is quite clear that initiative process is now attractive to politicians because it provides them access to unlimited, monetary contributions. It is further unsurprising then as politicians continue to use the initiative process that citizens become alienated in the process.

I know that I said that I would discuss the normative implications of judicial behavior, but, in some respects, feel that a different topic is better suited.

Much of my research  evaluates public opinion and how the Courts incorporate it into their decision-making process. The reason, simply put, is that the Court’s have established that there must exist an appearance or actuality of corruption in order to justify regulation of the ballot initiative process; this is particuarly stringent in the context of regulation of contributions to ballot initiatives (money is a form of speech which implicates First Amendment rights), and not to the same extent in the form of disclosure regulations (although current cases are starting to controvert this previously established research point).

Before I delve further into this topic, let me contextualize the dilemma caused by Court opinions which, possibly, is to the detriment of society. The United States Supreme Court has struck down regulation of ballot initiatives to such an extent that individuals are allowed to contribute unlimited amounts to particular ballot issues up for voting. In constrat, the United States Supreme Court allows for the regulation of contributions to individuals, candidates for public office. Overall, the Court’s logic is that there is not a singular person to be corrupted by the ballot initiative process like in a candidate election; the existence of a quid pro quo is not likely and, therefore, does not justify the Court allowing regulation of First Amendment rights to continue in the ballot initiative process.  This decsion to which I refer demarcated the differences  between ballot initiatives and candidate elections was made in the late 1970s. Notably, the Court did not delve into whether or not the public desired regulation of the ballot initiative process from the standpoint that corruption existed. Once this assumption was made, however, the political environment has changed. The Court did, however, lay out an exception in this seminal case in the 1970s; the government could regulate the ballot initiative process in the form of limiting contributions if, and only if, the appearance of corruption was shown to exist and the government’s regulation was narrowly tailored to satisfy that end.

During the course of my research, no case that involves regulation of individual contributions has been allowed. Furthermore, it is, unfortunately, less apparent what the court accepts in the form of evidence and regulation in the ballot initiative context. The amount of contributions to initiatives has skyrocketed, especially in comparision to money given to candidate elections; in California alone, the amount givern aggregately given to ballot initiatives was in the twenty million dollar range, but now is the mulitple hundreds of millions of dollars. In a given election, nearly $400 million was spent on ballot initiatives; this rivals, if not overwhelms, the amounts given to candidates for the U.S. Presidency.

It is difficult to ascertain the manner in which or the extent to which public opinion shapes, affects, or is incorporated in the decisions of the judiciary. So difficult, in fact, it took a research librarian and myself a couple of days to even find proper research queries–much to my dismay– to yield any pertinent data or information on the subject. Beyond difficulties in obtaining relevant research literature, the literature itself is rife with complexities and, intriguingly, contradictory beliefs and research methodologies; nevertheless, these studies reach similar conclusions. This has, overall, made my research on the nexus between public opinion and the courts exceptionally difficult.

Much debate is present in research literature, focusing on how, if at all, public opinion shapes the decisions of the U.S. Supreme Court and other appellate courts. The way in which researchers attempt to demonstrate and measure the connection between public opinion and the courts varies. In part, methodology itself is subject to scrutiny. This leads to increasing variation in the research literature. Most studies attempt to measure the courts’ tendency to reach more liberal and, conversely, conservative decisions. Despite the contradictions and differences in approach, marked similarities exist in the findings of the research. Public opinion does, in fact, have an impact on the decision-making of justices. The extent to which public opinion, however, influences the decision-making of the justices is not clear. Within this context, on the other hand, it is clear that the political context of the U.S. has a distinct impact on the decision-making capacity of justices. The political context includes two important elements that influence the court’s’ calculus: public mood and social mood. The following is an imprecise definition of both terms but, nonetheless, fulfills the working purposes of this journal. The public mood is loosely understood to be linked to economic perceptions of the public, and social mood is the demand (or lack thereof) for social progress which is manifested in various ways.

Another important facet is that when a unified government exits, partisan control of Congress and the Executive, public opinion and a justice’s individual preferences are not likely to influence the decision-making of the justices. Rather, when power struggles exist in Congress and the Executive or between those bodies, public opinion is relied upon in the sense that it supports the manner in which a justice reaches their decision, despite it possibly being at odds with the desires of the two other branches of government and those in power therein.