Even though campaign finance laws interfere with constitutional rights of free speech and association, the U.S. Supreme Court has held that the government may impose regulations on financial contributions to campaigns if it has a good enough reason to do so. The Court has recognized only one justification for curtailing the right to engage in political activity without governmental interference. That justification is combating corruption or the appearance of corruption.
But what if there is no one to corrupt? In ballot questions like initiatives and referenda, the people are the legislature and it is impossible to corrupt every voter. The Supreme Court therefore has recognized that the government cant restrict contributions to campaigns on ballot questions.
But, the Courts recognition of this fundamental notion raises more questions than it answers. If voters cant be corrupted, what justification is there for any restrictions on political speech in the ballot initiative context? Are campaign finance laws that regulate ballot questions legitimate attempts to improve democracy or simply regulation for regulations sake?
These questions will be debated by a distinguished panel of attorneys at the next Phoenix Federalist Society event. But there is no need to wait until the debate for the punch line. When it comes to regulating contributions to ballot initiatives, to ask the question is to answer it.
William R. Maurer is the executive director of the Institute for Justice Washington Chapter and will be a panelist at the Federalist Society event. Mr. Maurer recently achieved a unanimous opinion in the Washington Supreme Court holding that talk radio commentary could not be treated as a campaign contribution subject to restriction under Washington's campaign finance laws. To register for the event, go to www.fed-soc.org/events/eventID.195/event_detail.asp.