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Cloud Over Ballot Initiative Regulation Offers Silver Lining for Campaign Finance Reform

Newspapers across the nation have largely reported gloom and doom, as a result of the Supreme Court’s recent decision in Buckley v. American Constitutional Law Foundation (“ACLF”).

January 14, 1999

For Immediate Release
January 14, 1999

Contact Information:
Ken Weine, 212 998–6736

Cloud Over Ballot Initiative Regulation Offers Silver Lining for Campaign Finance Reform
Editorial Backgrounder

Newspapers across the nation have largely reported gloom and doom, as a result of the Supreme Court’s recent decision in Buckley v. American Constitutional Law Foundation (“ACLF”). In that case, the Court struck down several provisions of Colorado law regulating the ballot initiative process. But the Brennan Center believes that the decision contains an unexpected silver lining. “Although the Court made it harder for states to control the explosion of multi-million-dollar initiative campaigns,” said Brennan Center Senior Attorney Deborah Goldberg, “the language and analysis of ACLF offer hope for campaign finance reform.”

According to the Brennan Center, the actual scope of the case was pretty limited even on the initiative issues. The Court held that Colorado could not require petition circulators to be registered voters or to wear badges displaying their names. The Court also held that the state could not require reporting of the circulators’ names – when the names were already being filed with ballot petitions – or the amount paid to each paid circulator.

That’s all ACLF did. The Court did NOT find First Amendment fault with a requirement that circulators wear badges showing whether they are being paid or are volunteers. Nor did the Court hold unconstitutional a residence requirement for circulators. Those questions were not before the Court, and the Court left them for another day. In the meantime, Colorado may fully enforce those requirements.

Colorado – and any other state with similar provisions – is also free to require each circulator filing petitions to include a sworn affidavit with his or her name and address. The state still may demand disclosure of the proponents of each ballot initiative and the amount paid per signature, so that voters will know before the election the “source and amount of money spent . . . to get a measure on the ballot.”

The Rays of Hope from the Court on Campaign Finance Reform

In striking down Colorado’s initiative regulations, the ACLF Court emphasized the impact on “core political speech” and the need “to guard against undue hindrances to political conversations and the exchange of ideas.” That language might seem to bode ill for campaign finance reform. After all, in Buckley v. Valeo, the Court referred to expenditure ceilings as limitations on “core First Amendment rights of political expression.”

But, the Brennan Center says, read in context, ACLF’s concern is really good news. Before reaffirming the importance of free expression, the Court first stressed that states “have considerable leeway to protect the integrity and reliability of . . . election processes generally.” According to Ms. Goldberg, “the majority recognized that sometimes the value of unimpeded speech must yield to our interest in preserving a fair and honest democracy.”

In fact, the majority rejected the view that even “core” political speech is automatically entitled to the highest level of constitutional scrutiny. Justice Thomas was left all alone in endorsing such a “litmus-paper test” for First Amendment review. The majority and the two partially dissenting justices applied a more flexible standard.

ACLF may therefore help to resolve one of the hotly disputed issues in campaign finance litigation: What standard of review applies to limits on contributions to candidates’ campaigns? A split among the federal appellate courts now exists on that question. The Brennan Center suggests that, under ACLF, the marginal restriction on communication that such limits involve warrants relaxed judicial scrutiny and substantial deference to campaign finance lawmaking bodies.

ACLF should also be helpful to campaign finance reformers because it recognized Colorado’s desire to “control or check . . . domination of the initiative process by affluent special interest groups” as a “substantial state interest.” Says Ms. Goldberg: “The interest in reducing such domination of the initiative process can hardly be less substantial than the interest in controlling the same undue influence of big money on candidate campaigns.”

The Brennan Center therefore sees ACLF as a crucial new precedent in the effort to expand the scope of state interests that may justify campaign finance reform. Until now, the Supreme Court appears to have been fixated on various forms of corruption, or the appearance of corruption, as the only harms that justify campaign finance regulation. The Court has recognized the distorting effect of big money only where wealth is accumulated with the help of the state, as is the case with corporations. But the “affluent special interest groups” that posed a risk to the initiative process in Colorado were not necessarily corporations, and the monied interests that threaten public trust in representative government aren’t either.

Finally, ACLF clarifies that whatever limits may be placed on disclosure requirements for ballot measures do not necessarily apply to candidate campaigns. Less disclosure may be warranted for initiatives because they “do not involve the risk of ‘quid pro quo’ corruption present when money is paid to, or for, candidates.” That language also confirms that it is the “risk” of corruption, and not merely its actuality, that warrants controls on campaign financing. That fact has lately been overlooked by the Eighth Circuit in a case overturning contribution limits higher than those upheld in Buckley. The Brennan Center is seeking Supreme Court review of that case. Shrink Missouri Government PAC v. Adams (certiorari petition of Joan Bray).

The Brennan Center is a nonprofit institute devoted to discourse and action on issues of justice central to the jurisprudence of the late U.S. Supreme Court Justice William J. Brennan, Jr. The Center is engaged in litigation, public education, and scholarship on campaign finance reform throughout the nation.