Money and speech

The Supreme Court last week rejected limits Colorado tried to place on its process for initiating referendums in a case that will be important in Maine if current trends hold. The court in this decision continues its well-known assertion from Buckley v. Valeo that money equals speech, despite the growing evidence that money can speak so loudly at times that no one else can get a word in.

Since 1993 Maine has voted on more initiated referendums than in the years from 1910 to 1970 combined. Failure to gather the required 50,000-plus signatures is becoming less and less frequent, especially since petitioners have been allowed to set up near voting booths. Maine petitioners also have been helped by the influence that Colorado was trying to curb, large amounts of out-of-state money.

From gay rights to logging or election practices, money has allowed national groups to determine what Maine will debate. When this happens, Maine is not acting as a democracy but as a test market for special interests before they take their cause nationwide. Colorado, experiencing a similar problem, tried to rein in this problem by passing several requirements for petioners, six of which were challenged in court. The six were that petition circulators must be at least 18; be registered voters; circulate petitions for only six months; wear identification badges saying whether they are volunteer or paid; sign an affidavit saying “he or she has read and understands the law governing … petitions”; and disclose how much he or she was paid for the collection of signatures.

A district court struck down all but the the age, affidavit and six-month limit, and the Supreme Court struck down those, asserting the First Amendment did not allow these impediments to “communication with voters.” The ruling ought to make other states review their own laws, although it fails to define what sort of limits are permissible, much less recognize that the original purpose of encouraging direct democracy has long left many of the referendum battles.

In his dissent, Chief Justice William Rehnquist was correct to identify the corruption of the process, in which “out-of-state interests which employ professional firms doing a nationwide business” have come to dominate.

He wrote, “The ironic effect of today’s opinion is that, in the name of the First Amendment, it strikes down the attempt of a state to allow its own voters (rather than out-of-state persons and political dropouts) to decide what issues should go on a ballot to be decided by the state’s registered voters.”

As with the financing of campaigns, money drives the referendum process and eventually corrupts it. The courts will revisit this issue again and again as states try to maintain some control over their own laws, but it will not be until the Supreme Court recognizes the need to refine its view of the connection between money and speech that any progress will be made.