The Single Subject Rule

Most states with ballot initiatives follow some variation of the Single Subject Rule. The Rule has been criticized by me (and countless more luminous figures) as unmanageable and, indeed, unmanaged. Critics of many different ideological bents seem to agree that the SSR gives "activist" courts an excuse to overturn voter-enacted legislation without directly addressing the merits of the law.

I've attached an interesting debate between several well-known scholars of election law which has taken place in the Columbia Law Review over the last few months. I hope to add a few comments of my own, as well.

First, in April, the Columbia Law Review published this article, "A Theory of Direct Democracy and the Single Subject Rule," by Robert D. Cooter and Michael Gilbert, 110 Colum. L. Rev. 687 (2010). 

A week later, Richard Hasen and John Matsusake posted this reply to the Columbia Law Review "Sidebar," which was respectfully critical of Cooter and Gilbert.

Most recently, Cooter and Gilbert published a brief note in reply to them. 

Citizens United, free speech, and regulated speech

Jim Gardner has posted a draft to SSRN, called "Anti-Regulatory Absolutism in the Campaign Arena: Citizens United and the Implied Slippery Slope."


I haven't read it yet (but look forward to it). The abstract says: 

Perhaps the most striking feature of the Supreme Court’s constitutional campaign jurisprudence is its longstanding, profound hostility to virtually any government regulation whatsoever of campaign speech and spending. Such an approach is highly unusual in constitutional law, which typically tolerates at least some level of regulatory intervention even with respect to strongly protected rights. The Court’s behavior in this respect is consistent with – and, I argue, is best understood as – the kind of behavior in which a court engages when it fears a slide down a slippery slope. But what lies at the bottom of the slope? And how reasonable is the Court’s apparent belief that any movement at all down the slope will result in an irreversible slide into the disfavored outcome?

Although the evidence is scanty, the Court’s behavior appears to be motivated by a deep-seated fear of loss of democratic self-rule, especially a fear that incumbents will use government power to entrench themselves in office, resulting in a catastrophic and possibly irremediable loss of popular sovereignty. This is without question a serious and legitimate fear. Justification of the Court’s rigid response to this fear, however, requires more: it requires the existence of some mechanism by which permitting even a modicum of government regulation of campaign spending might plausibly lead down the slippery slope to political slavery. Because slippery slope arguments nearly always rest on speculative empirical premises, they rarely can be rebutted in any formal sense. Nevertheless, slippery slope arguments can be more or less plausible, and I argue that none of the possible mechanisms of descent down the slope is sufficiently plausible to justify the Court’s uncompromising, absolutist stance against regulation of campaign spending.

As he notes, we allow a broad range of regulation of all sorts of speech. Perhaps the most notable exception to this tolerance is the Supreme Court's apparent complete lack of tolerance for regulation of election-related speech. Plus, I'm always a sucker for a slippery slope argument.

From Mirror of justice

...A blog dedicated to the development of Catholic legal theory. "Citizens United: Main Street v.Wall Street."  http://mirrorofjustice.blogs.com/mirrorofjustice/2010/08/citzens-unitedwall-street-v-main-street.html

Paper on Judicial Interpretation of Initiatives

I wrote this paper early this year about judicial interpretation of voter-enacted legislation. The paper has its flaws, and is a work in progress (I hope) but just in case someone is interested...

http://www.scribd.com/doc/36305435/Jealous-Guardians

The Oregon Independent Party

OPB reported on July 19, 2010 on voter confusion between being independent and being a member of the Independent Party.

http://news.opb.org/article/9096-oregon-voters-flock-independent-party-whether-they-mean-or-not/

Sometimes a bright line rule has drawbacks...

“It’s a clear test….It’s also an idiotic test.”

—	California Fair Political Practices Commissioner Beth Garrett, on the “Magic Words” test for campaign speech.