State Regulation of the Initiative Process: Background and Analysis of Issues in Buckley v. American Constitutional Law Foundation, Inc., et al. (CRS Report for Congress)
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| Release Date |
Feb. 16, 1999 |
| Report Number |
RL30067 |
| Report Type |
Report |
| Authors |
T.J. Halstead, American Law Division |
| Source Agency |
Congressional Research Service |
Summary:
From its inception, the United States has fostered and encouraged unfettered discussion and
debate
regarding political issues facing the nation. Indeed, the First Amendment affords the greatest
protection to political expression, to assure the free interchange of ideas. Coupled with this respect
for free speech and political expression, though, is the sometimes contrary notion that states possess
authority to regulate the electoral process in order to avoid campaign related disorder.
Due to the increased popularity of the use of ballot initiatives and referendums as a tool for
political change, and resulting state efforts to regulate these activities, these two lines of legal
thought have been the source of significant conflict. While the Supreme Court has always served as
a stalwart protector of First Amendment rights relating to political expression, its prior decisions
dealing with the topic related mainly to areas of pure speech, leaving significant questions regarding
how these rights would be interpreted in light of a state's interest in preserving the integrity of its
electoral processes.
The Supreme Court addressed this conflict in Buckley v. American Constitutional Law
Foundation, Inc., et al., a case arising from the Court of Appeals for the Tenth Circuit.
Specifically,
the Court analyzed the constitutionality of provisions enacted by the State of Colorado requiring that
petition circulators be registered voters, to wear identification badges, and mandating the disclosure
of amounts disbursed to paid circulators. While the Court had handed down previous rulings
pertaining to state regulation of the electoral process and associated First Amendment free speech
considerations, it had not spoken directly on the applicability of such rulings to the initiative process.
Justice Ginsburg delivered the opinion of the Court that such provisions constituted an
unconstitutional restriction on First Amendment freedoms regarding political expression, and was
joined by Justices Stevens, Scalia, Kennedy, and Souter, with a concurring opinion by Justice
Thomas. Justice O'Connor dissented from the Court's holding regarding the registration and
disclosure requirements, and was joined by Justice Souter. Chief Justice Rehnquist also submitted
a dissenting opinion in opposition to the Court's disposition of the disclosure and registration issues.
The Court's decision extends First Amendment rights acknowledged in prior cases, and elaborates
upon permissible state regulation in the initiative and referendum process, while leaving several
questions regarding the scope of such state control unanswered.
