Tag: Election Law

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

From Volume 78, Number 4 (May 2005)
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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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Social Choice, Crypto-Initiatives, and Policymaking by Direct Democracy – Article by Thad Kousser & Mathew D. McCubbins

From Volume 78, Number 4 (May 2005)
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The initiative process was created originally to enable citizens to enact public policy directly and, in so doing, to overturn the dominion of interest groups and of state and local party machines. In recent years, initiatives have been thought to serve as a check on legislative authority and to provide the people with a means to pressure the legislature into adopting more public-regarding policies. Indeed, the general consensus emerging from the most recent academic research is that, at their worst, initiatives are benign and, at their best, they serve to further the interests of electoral majorities.

A few scholars, however, have found reason to pause in their celebration of the initiative, finding shortcomings in its process, its outcomes, or both. In this Article we argue that initiatives will only infrequently improve the public’s welfare. We begin with a survey of the basic social choice and public choice critiques of the initiative process. We argue that, despite recent rigorous scholarly attention on the effects of initiatives, we find little reason yet to reject the social and public choice criticisms of policymaking via direct democracy. We then offer a series of anecdotes about the rise of “crypto-initiatives,” which are initiatives that use direct democracy as an instrument to achieve nonpolicy-related goals. Finally, we conclude that the problems inherent in the initiative process are being magnified by the increase in crypto-initiatives and the rise of the crypto-political machines, the new 527 political action committees (“PACs”), that sponsor them. Increasingly, the public welfare may be only an incidental consideration in the sponsorship, passage, and implementation of initiatives. This in turn implies that we consider anew limiting or amending the initiative process.

 

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The Effectiveness of Money in Ballot Measure Campaigns – Article by Thomas Stratmann

From Volume 78, Number 4 (May 2005)
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When it comes to money in politics, academic research has a difficult time establishing that the resources spent by special interest groups influence the formation of legislation, the passage and defeat of ballot measures, and the identity of the winner in candidate elections. For example, the academic literature on ballot initiatives suggests that campaign expenditures raised to pass initiatives have little effect on passage rates; if money has had any influence at all, then it may be in opposing initiatives. Elisabeth Gerber finds the evidence so weak that she concludes, “the empirical evidence provides further basis for rejecting the allegation that economic interest groups buy policy outcomes through the direct legislation process.” Other scholars have found that when special interests want initiatives passed, “money spent by proponents in this arena is largely wasted.” Also some works in the academic literature on campaign spending and campaign contributions find that their effects on political outcomes are small.

In contrast to much of the academic work, politicians appear to believe that money is important in politics. This is also suggested by the 1962 claim made by Jesse Unruh, Speaker of the California Assembly, that “‘money… is the mother’s milk of politics.’” Moreover, the popular press is full of claims that money has an important and overly heavy influence on politics.

 

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Voting, Annexation, and Metropolitan Structure: A Comment on Gillette – Commentary by William A. Fischel

From Volume 78, Number 4 (May 2005)
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This Comment on Professor Gillette’s article offers an economic way of thinking about voting on annexation and incorporation. It is not a criticism of his article in the ordinary sense. Indeed, the major conclusion that follows from the analytical model is that concurrent voting on annexation, which Gillette generally favors, is economically desirable.

To be clear, concurrent voting means here that the annexation must be approved by a majority of voters or their representatives in the existing city that seeks to annex some territory and by a majority of the voters in the territory to be annexed. If the proposed annexation fails to achieve a majority in either jurisdiction, the proposal fails. In what follows, the more critical majority is that of the territory to be annexed, not that of the annexing city.

The contribution of this Comment is rather one of perspective. Annexation and incorporation decisions affect how a metropolitan area is governed, and governance of metropolitan areas affects their economic performance. My model shows that the prospect of capital gains in land values will, in some plausible situations, normally make voters make the right decisions for the larger metropolitan area. In order not to be too Pollyannaish about this process, I will conclude by pointing out some situations in which this sanguine result might not apply.

 

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Comments on Gillette, “Voting with Your Hands: Direct Democracy in Annexation” – Commentary by Jan K. Brueckner

From Volume 78, Number 4 (May 2005)
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Clayton Gillette’s paper is very penetrating and full of insights regarding the incentives involved in the annexation decision and the effect of political arrangements on the outcome. My goal in these comments will be to provide a complementary formal analysis of some of the issues exposed by the paper, using a diagrammatic approach. This approach can clearly show the gains and losses from annexation that accrue to the various parties, as well as revealing whether an annexation is socially desirable in an overall sense.

The analysis depicts a number of different scenarios that might arise in an annexation, illustrating some of the cases mentioned in Gillette’s discussion. For example, annexation might be socially undesirable, reducing the combined surplus of annexees and city residents, while being narrowly beneficial to the latter group. By contrast, annexation may benefit both groups, thus raising social welfare. While any voting arrangement will yield the right outcome in the second case, some institutional setups (for example, only city residents vote) will lead to inefficient annexation in the first case.

 

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Contribution and Spending Limits for Initiatives or Other Ballot Propositions: What Evidence is Needed to Justify a Particular Regulatory Regime? – Commentary by Bernard Grofman

From Volume 78, Number 4 (May 2005)
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Drawing on the insightful synthesis of recent Supreme Court cases on expenditure and spending limits on ballot propositions by Richard Hasen, I briefly review the justifications for regulating levels of campaign contributions and expenditures in the initiative/referendum process based on claims about the critical importance of money in politics. My focus here will be on evidentiary issues rather than jurisprudence, per se. I focus on the important question “Where’s the beef?” – that is, exactly what evidence is needed to demonstrate that money can play a sufficiently pernicious and pervasive role in the initiative campaign process such that a balancing test against the scope of impingements on First Amendment rights is appropriate? I argue that the state of social science knowledge is not yet such that universal generalizations about the role of money in politics can be supported. Nonetheless, it is reasonable for courts to allow legislatures regulating the initiative process to rely on informative case studies as their grounding for the regulatory options chosen, rather than “waiting for Godot” in the form of definitive social science research. I also provide some suggestions as to the types of research that would both serve as important theoretical contributions in political science and be helpful for the courts in the future.

 

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The Empirics of Campaign Finance – Commentary by Daniel R. Ortiz

From Volume 78, Number 4 (May 2005)
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Thomas Stratmann’s The Effectiveness of Money in Ballot Measure Campaigns and Richard Hasen’s Rethinking the Unconstitutionality of Contribution and Expenditure Limits in Ballot Measure Campaigns form a nice pair. Both question existing understandings of the empirics of campaign finance but from different perspectives. Stratmann investigates the central empirical issue in the area: the connection between campaign spending and campaign success. He questions the body of studies that find surprisingly little impact of the former on the latter, points out the conflict between this result and contemporary political practice, and identifies a methodological flaw common to all the studies. At the end he proposes a different way of modeling such spending – one that takes spending strategy into account – and finds that the influence of campaign spending on outcomes is more robust than the existing body of empirical work indicates.

Hasen’s contribution focuses not on the validity of existing empirical studies, but rather on the Supreme Court’s use of empirical evidence in its campaign finance cases. After considering the effect on ballot measures of recent Supreme Court cases concerning campaign finance regulation of candidate elections, Hasen turns to a more general task: analyzing “the role that evidence plays in the Court’s campaign finance jurisprudence.” He criticizes the Supreme Court’s current use of evidence as unprincipled and strongly argues that the Court should employ empirical evidence in a particular way – to determine whether a law’s means are appropriate.

 

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Crypto-Initiatives in Hybrid Democracy – Commentary by Elizabeth Garrett

From Volume 78, Number 4 (May 2005)
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Most Americans live in a hybrid democracy: a democratic system that is neither wholly representative nor wholly direct, but a complex combination of both at the local and state levels, which in turn influences national politics. One characteristic of a hybrid system is that politicians, interest groups, and political parties strategically use initiatives to affect voter turnout in candidate elections, to increase their membership rolls and the funds in their political war chests, and to evade campaign finance restrictions that apply in many candidate races. The use of the initiative process by politicians and parties is not new, but it seems to be increasing in recent years, or at least it is more salient. Savvy political actors are using what Thad Kousser and Mathew McCubbins call “crypto-initiatives,” which are “initiatives… designed by agenda setters… who have other goals in mind [than changing public policy]; for them, affecting policy is often at most a secondary concern.” Most of the initiatives that Kousser and McCubbins go on to describe are generated or manipulated by candidates, political parties, or other political actors seeking to aid the campaigns of particular candidates or parties.

The notion of crypto-initiatives underscores the heavy involvement of elected officials and political parties in the initiative process, a theme also emphasized in Richard Hasen’s contribution to this Symposium, which reveals the number of California issue committees controlled by politicians. In the past, much of the scholarship in law and social sciences has been preoccupied with the influence of organized and well-funded interest groups on the initiative process, or the role of wealthy individuals who back petition drives and ballot measure campaigns. Kousser and McCubbins’s article raises the question of how the involvement of political actors – who are accountable to the voters – differs from the involvement of these other groups and people. Kousser and McCubbins spend most of their time on the malignant effects of crypto-initiatives on policy and governance; I want to sketch out three effects that might be positive.

 

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