Daniel H. Lowenstein

Initiatives and the New Single Subject Rule

35 DURING THE PHILADELPHIA CONVENTION to draft the United States Constitution, James Madison and others supported creation of a Council of Revision, to be composed of the members of the Supreme Court and the President. The Council of Revision would have a discretionary veto power over laws enacted by Congress and the state legislatures. The Philadelphia convention rejected the idea, deciding ultimately that the President but not judges should have a discretionary power over the enactment of legislation.1 Of course, under the constitutions of the national government and of all the states of the union, the courts exercise the power of judicial review, enabling them to render unenforceable any laws they find to be unconstitutional. That power does not include nullification of statutes on purely discretionary grounds. In recent years, the supreme courts of several states have arrogated to themselves a nullification power comparable to the discretionary power proposed and rejected at Philadelphia for the Council of Revision. The unlikely vehicles for this arrogation have been state constitutional provisions restricting initiative proposals to a single subject. Ostensibly, the nullification of initiative statutes is no different from other exercises of judicial review. However, as I shall argue, review under the single subject rule is qualitatively different from review under other constitutional provisions. The recent change in judicial application of the single subject rule has been dramatic. For better or for worse, critics who have called for more aggressive application of the single subject rule are getting their way.2 Florida has long been recognized as the one state in which the single subject rule has had strong teeth.3 Following a constitutional amendment adopted in 1994, the same has been true of Colorado.4 In some other states, including Missouri and Oklahoma, there have been at least occasional intimations of aggressive review. On the whole, however, until quite recently, review of initiatives under the single subject rule has been deferential.5 In most states, courts used the same deferential standards to apply the single subject rule to initiatives that they had long used to apply the rule to laws enacted by the legislature. In 1986, the Oregon Supreme Court could review the case law and conclude “that the Florida court stands alone in its reasoning that there should be a stricter construction of the constitutional provision where an initiative measure is involved.”6 High court decisions within the 2-year period of 1998–99 in three states—California, Ore-

BCRA and McConnell in Perspective

277 THE BIPARTISAN CAMPAIGN REFORM ACT (BCRA) “represented the most far-reaching and controversial attempt to restructure the national political process in a generation.”2 McConnell v. FEC3 “is certainly the most important campaign finance case since Buckley v. Valeo[4] . . . .”5 These assertions, put forth in this Symposium by one of our more level-headed election law scholars, are representative of much that has been said, formally and informally, since McConnell was handed down on December 10, 2003. Each is true—or arguably so—but neither says as much as may at first appear. Yes, BCRA is the most far-reaching overhaul of the national election process in a generation, but that is because it is the only such overhaul in a generation. The last significant amendments to the Federal Election Campaign Act (FECA) occurred in 1979. Their main purpose was to liberalize restrictions on party campaign activity that had been found to have a stultifying effect in the 1976 presidential election. BCRA’s proudest achievement, according to its supporters, is to wipe out those very liberalizations and impose new and even more onerous restrictions. Whether McConnell is the most important campaign finance decision since Buckley is hard to say, because one would have to ask, important for what purpose? Is it more important for the Supreme Court to ratify a ban on corporate and labor union contributions to the national political parties, or for the Court to give constitutional protection to corporations’ ability to contribute millions to support or defeat a ballot measure?6 If you work on Capitol Hill, you will probably say the former, but some of us here in California might say the latter. In any event, McConnell pales next to Buckley, even if it stands out among Buckley’s progeny. The most obvious reason BCRA and McConnell seem so very important right now is that they are so close to us in time. Author after author in this Symposium quite rightly comments that time must pass before we will be able to appreciate BCRA’s and McConnell’s consequences. But for the moment, their prospect looms large. Another reason is that in certain ways, McConnell looks like Buckley. Each case reviewed numerous provisions in highly complex federal legislation that had never gone into effect through an election cycle. In each case, Congress established a special litigation procedure with expedited review in the

The Party Line

113 ON DECEMBER 10, 2003, the Supreme Court issued its decision in McConnell v. Federal Election Commission, undoubtedly the most widely anticipated decision in election law in many years. The Court upheld the constitutional validity of nearly all of the Bipartisan Campaign Reform Act of 2002 (also known as the McCain-Feingold law or the Shays-Meehan law), striking down only a few relatively minor provisions. In the words of Richard Briffault, one of our contributors in this issue, the decision was “a stunning triumph for campaign finance reform.” McConnell invites those of us with an interest in election law to look back at what Congress and the Court have done and to assess their actions’ continuity with or departure from past practices and understandings. It also invites us to look forward to the likely consequences. In this special issue, our Symposium on the McConnell decision makes what we believe is a major contribution to the needed deliberation and debate. Although much valuable commentary has already appeared in the general press, you hold in your hands the first in-depth consideration of McConnell and its implications by a broad and diverse cross-section of experts. Our Symposium begins with commentaries by Senators John McCain and Mitch McConnell, the most prominent supporter and the most prominent opponent of the BCRA. Each has commanded widespread respect from friend and foe alike for effective leadership in behalf of deeply held convictions. Their contributions are followed by our three lead articles, written by two law professors and one political scientist, each of whom has contributed importantly to the debate on campaign finance over the years: Lillian BeVier of the University of Virginia Law School, Richard Briffault of Columbia Law School, and Michael Malbin of the Campaign Finance Institute. The Symposium is rounded out by 25 shorter but still substantial commentaries. The authors represent a wide variety of professional backgrounds, partisan affiliations and views on campaign finance. For convenience, here is a listing broken down by professional position:

American Political Parties

The past quarter century has been a time of considerable institutional change in the American party system. In part, change has been instigated by two self-conscious reform movements.