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Prepared for A More Perfect Union? Democracy in the Age of Ballot Initiatives, forthcoming in University of Minnesota Law Review (2013).

In the ever-evolving jurisprudence of campaign finance, one principle has endured: the rules governing candidate elections are analyzed differently from the rules governing ballot measures because the latter elections have been found not to implicate the state’s legitimate interest in combatting quid pro quo corruption. It should now be apparent to even a casual observer of the initiative process, however, that candidates are very involved in ballot measures; they use initiatives to influence turnout in elections in which they are also running, and they resort to initiatives to adopt policy change they cannot enact through the traditional legislative system. The clear relationship between candidates and direct democracy is formally present in a context of growing salience: recalls. In this article, I use recall elections as a way to consider the current state of campaign finance jurisprudence as it relates to all the mechanisms of direct democracy; recalls provide a different framework to assess campaign finance rules because they are explicitly hybrid elections, combining a ballot question about the recall of an official and, sometimes simultaneously, the election of a successor. Part I will lay out the structure of the recall process, particularly in California and Wisconsin, the two states in which statewide recalls of governors have shaken the political establishment and caught the attention of the nation. Part II will analyze the constitutional issues raised by campaign finance regimes that include contribution limitations affecting recall elections, particularly in light of Citizens United v. Federal Election Commission. Part III will extend this analysis and argue that the conclusions reached about permissible regulatory structures in the context of recalls implicate the way states and municipalities regulate money in ballot measure campaigns generally.

Abstract

In the ever-evolving jurisprudence of campaign finance, one principle has endured: the rules governing candidate elections are analyzed differently from the rules governing ballot measures because the latter elections have been found not to implicate the state’s legitimate interest in combatting quid pro quo corruption. It should now be apparent to even a casual observer of the initiative process, however, that candidates are very involved in ballot measures; they use initiatives to influence turnout in elections in which they are also running, and they resort to initiatives to adopt policy change they cannot enact through the traditional legislative system. The clear relationship between candidates and direct democracy is formally present in a context of growing salience: recalls. In this article, I use recall elections as a way to consider the current state of campaign finance jurisprudence as it relates to all the mechanisms of direct democracy; recalls provide a different framework to assess campaign finance rules because they are explicitly hybrid elections, combining a ballot question about the recall of an official and, sometimes simultaneously, the election of a successor. Part I will lay out the structure of the recall process, particularly in California and Wisconsin, the two states in which statewide recalls of governors have shaken the political establishment and caught the attention of the nation. Part II will analyze the constitutional issues raised by campaign finance regimes that include contribution limitations affecting recall elections, particularly in light of Citizens United v. Federal Election Commission. Part III will extend this analysis and argue that the conclusions reached about permissible regulatory structures in the context of recalls implicate the way states and municipalities regulate money in ballot measure campaigns generally.

Disciplines

Election Law | Law | Law and Politics | Law and Society | Legislation

Date of this Version

7-24-2012

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