Washington Libertarian Review

Political commentary from the State of Washington with a libertarian perspective.

Tuesday, January 04, 2005

Rethinking the Unconstitutionality of Contribution and Expenditure Limits in Ballot Measure Campaigns

Loyola Law School Professor Rick Hasen, who is a nationally respected election law expert has composed this draft in favor of extending campaign finance laws to ballot measures.

Until know, the courts have generally distinguished candidate campaigns from initiative campaigns and left the corporations and the unions to spend as much as they wanted for or against initiatives. Here in Washington, for example, the Indian tribes spent several million dollars to defeat Tim Eyman's I-892 (scratch ticket machines).

But the question is, who is helped by campaign finance regulation and who is hurt? Clearly those with the resources to negotiate and respond to the multiple requirements of accounting and reporting will not be hurt in the same way that campaigns with limited resources. There is also the question whether the First Amendment can tolerate limits on both candidate campaigns and issue campaigns. I think the only reason candidate campaigns can be constitutionally regulated is because there is still an unregulated outlet for issue based campaigns.

Hasen himself confesses his ambivalance in this arena, and suggests, at minimum, that the U.S. Supreme Court needs to adopt guidelines for "a more precise and transparent evidentiary inquiry into the connection between the goals of campaign finance laws and the means of achieving them will assist fair-minded judges in the inevitable constitutional balancing."

In the course of litigating the blanket primary case, it became clear to me that, as Hasen suggests, "The Court’s demand for evidence in campaign finance cases is shifting and imprecise. In fact, evidentiary analysis appears often to be a proxy for a determination on the merits made more on faith than evidence."

Stated alternatively, if the Supreme Court wants an election law regulation to survive it doesn't require the state to produce any evidence of need for the regulation. Speculation and conjecture is sufficient. If the court wants the regulation to fail it does require the state to show evidence that the regulation is truly necessary.

And guess what? If the Democratic or Republican Parties make a claim, the court requires the state to make the showing. However, if a minor party makes a claim, speculation and conjecture is sufficient. Some of us are more equal than others, it seems.


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