By Elizabeth Garrett. Full text here.
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, according to the courts, the latter elections do not implicate the state’s legitimate interest in combating 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. Savvy politicians use initiatives to influence turnout in elections in which they are also running, and some 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: recall elections. In the nineteen states that allow recalls on the state level and the twenty-nine or more that provide for recalls of local officials, the hybrid nature of our democratic institutions is clear and draws into question any easy bifurcation of campaign finance rules that turn on the presence of a candidate.
In this Article, I will 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 through which 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, focusing on Citizens United v. FEC and other relevant recent decisions. 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. Moreover, the conclusions that emerge from the analysis powerfully suggest that the Court’s broader campaign finance jurisprudence ignores the most compelling justification for regulating money in politics: working to ensure equality of the opportunity to participate in the political realm.