TITLE

The "Overlooked Hermaphrodite" of Campaign Finance: Candidate-Controlled Ballot Measure Committees in California Politics

AUTHOR(S)

Dempsey, Hank

PUB. DATE

February 2007

SOURCE

California Law Review;Feb2007, Vol. 95 Issue 1, p123

SOURCE TYPE

Academic Journal

DOC. TYPE

Article

ABSTRACT

Campaign finance jurisprudence is currently in a bit of an odd spot: a candidate for public office is heavily restricted in the amount of contributions he or she may receive for an election campaign, but the same candidate is able to solicit and accept unlimited sums of money for a ballot measure committee that he or she controls. Despite the wide divergence in regulation, a candidate can use the unrestricted contributions held in the coffers of a ballot measure committee for political activities strikingly similar to those he or she would otherwise pursue with personal, restricted campaign funds, such as running media advertisements featuring the candidate or promoting his or her political views to voters prior to an election. This apparent contradiction is a quarter-century old artifact of constitutional law. In 1981, the Supreme Court held in Citizens Against Rent Control v. City of Berkeley that the �prevention of corruption� rationale which justified limits on contributions to candidates did not apply to contributions made to ballot measure committees. The Court explained that because the fate of a ballot measure ultimately lies in the hands of the public instead of elected officials, there is no one to be �corrupted� by large contributions to initiative committees, and therefore any restrictions on contributions constitutes an unjustified infringement of political speech. This Comment joins the growing chorus of voices arguing that the logic of City of Berkeley no longer holds true. An examination of the text of relevant Supreme Court decisions suggests the Court did not foresee the growing influence of initiatives in electoral politics and governance. An analysis of the historical development of candidate-controlled ballot measure committees (CCBMCs) coupled with an examination of modern campaign and fundraising practices (with a particular emphasis on California's 2005 special election) shows the political environment has evolved substantially in the twenty-five years since the Supreme Court decided City of Berkeley. Now, elected officials face strong incentives to treat ballot measure contributions with almost the same importance as reelection contributions, in part because the candidate's popularity, agenda, and political power can be heavily influenced by how those contributions are spent and which initiatives pass or fail. CCBMCs have become, in effect, the �overlooked hermaphrodite� of campaign finance: a unique and largely unrecognized creature bearing characteristics once believed to be mutually exclusive and whose very existence challenges the Supreme Court's antiquated view that candidates have no personal political interest in funding ballot measure advocacy. Furthermore, at least seventeen other states have campaign finance laws which could foster a substantial CCBMC presence and the risk of campaign finance circumvention that comes with it. The time has come for the judiciary to revisit and revise this doctrine.

ACCESSION #

24447551

Tags: CAMPAIGN funds;  REFERENDUM;  ELECTIONS;  POLITICAL candidates;  POLITICAL participation

 

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