Ballot Propositions and Campaign Finance Reform

Philip C. Bobbitt, Columbia Law School


For more than two decades, law and policy in the area of campaign finance reform have been framed by the conflict between the norms of promoting political equality and protecting political participation. Viewing campaign finance as a basic component of political activity, the Supreme Court has generally given political participation priority over equality and has invalidated reforms that would limit spending in order to promote equality. The Court, however, has sustained some restrictions on campaign finance activities of candidates, political parties, and individuals and groups who work with these political professionals. In effect, concern about the capacity of private donations to corrupt officeholders has mediated some of the tension between speech and equality and has provided a justification for some reforms, such as disclosure rules and contribution limits. As the 1996 election demonstrated, however, these efforts at reform have had relatively little effect in stemming the flow of special interest money into candidate and party coffers.

Like campaign reform, the ballot initiative is intended to weaken the power of special interests over government. Instead of reducing the power of monied interests over elected officials, the initiative curtails the role of elected officials by enabling the people to make law directly, thus bypassing the corruptible legislature. Yet today, as Professor Raskin demonstrates, the campaign finance inequalities that characterize candidate elections mark initiative elections, too. However hard true campaign finance reform has been – and continues to be – in the candidate context, it will be even more difficult to achieve in ballot proposition elections.

The hallmark of direct democracy, and particularly of voter-initiated measures, is the absence of candidates and party labels from election campaigns. Initiative campaigns are typically mounted by private individuals or groups, with many of the campaign committees organized on an ad hoc basis to support or oppose a particular proposition. The Supreme Court has been, so far, unwilling to accept limits on the campaign finance activities of private interests, however monied they may be. Therefore, the centrality of nonpoliticians to initiative elections makes it more difficult to secure reforms that limit the role of private money in ballot initiative elections. Even if doctrine were to change to permit greater regulation of campaign money in ballot proposition campaigns, the relatively open nature of direct democracy would still make it more difficult to implement many reforms – not just contribution and expenditure limits but also the provision of public funds that would reduce the influence of private interest money.