Rethinking the Unconstitutionality of Contribution and Expenditure Limits in Ballot Measure Campaigns – Article by Richard L. Hasen

From Volume 78, Number 4 (May 2005)

Supreme Court precedent dating back to the 1970s and 1980s precludes state and local jurisdictions from limiting financial contributions to committees formed to support or oppose ballot measures or from barring corporate expenditures in ballot measure campaigns. These precedents emerged from the Supreme Court at the time of its greatest hostility to campaign finance regulation, when it viewed such laws as impermissibly impinging on the rights of free speech and association guaranteed by the First Amendment.

These precedents are ripe for reexamination in light of the Supreme Court’s new-found deference to campaign finance regulation, culminating in 2003’s McConnell v. FEC, a case upholding the major provisions of the Bipartisan Campaign Reform Act of 2002 (commonly known as “the McCain-Feingold law” or “BCRA”). McConnell and three other cases that make up what I have termed the “New Deference Quartet” did not concern ballot measures; yet, their analyses of campaign finance laws in the context of candidate elections potentially open up the door to new regulations in the ballot measure context.

This Article considers three potential ballot measure campaign finance regulations and their likelihood of passing constitutional muster under the more recent precedents: a law limiting contributions to ballot measure committees controlled by officeholders; a law limiting contributions to all ballot measure committees; and a law limiting expenditures in ballot measure campaigns by corporations and labor unions. Although it is fairly clear that all three proposed laws would have been struck down by the Supreme Court in earlier decades, they have a surprisingly good chance of passing muster today.



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