Large, Undisclosed Sums Given to Support or Defeat California Ballot Initiatives

The outcome of 11 ballot initiatives on the November 6 statewide ballot hangs in the balance. One thing is already clear: The amount of money being given and spent to urge members of the electorate to vote "yes" or "no" on these measures is significant. A report published last week puts the amount of money given in favor of and against ballot measures at almost $300 million.

And this money is not divided evenly among the eleven ballot measures. A number of wealthy individuals have given large sums to support certain ballot measures. Attorney Molly Munger, for instance, has given almost $33 million in support of her proposed ballot initiative, Proposition 38, which would raise the income tax on most Californians and put that increased revenue into the public school system. (For more on it and and the competing proposition, Prop 30, read this article on KCET's Ballot Brief.)

It is important to note that the $300 million figure reflects money given to ballot measure committees more than two weeks before the election. We can only expect that figure to rise as the election nears (Ballot Brief updates who's funding what a couple times a week. Keep track here).

Because of a number of Supreme Court decisions, the amount of money spent to get voters to vote "yes or "no" on ballot measures (not to mention to elect or defeat candidates) is unlikely to ebb. At least in the short term, it seems likely that the only way to regulate money flowing throughout the political marketplace will be to disclose the source and use of that money.

But last week a non-profit group based in Arizona gave $11 million to committees supporting or opposing two California ballot initiatives. From my perspective, the problem is that we know very little about this group. If, as the Supreme Court says, money is the equivalent of speech, then the identity of the speaker is vitally important. It is human nature to weigh an argument based on the identity of the speaker. Such information helps people to determine why an individual or entity would spend large sums concerning ballot measures. Without proper disclosure, the electorate is left only with the message funded by such donations, but not the source of that message.

In California, the Fair Political Practices Commission, the state's watchdog organization, has taken and is continuing to take steps to shed light on this so-called "dark money." My hope is that in California and in the rest of the country that large and largely untraceable campaign spending will soon by a thing of the past.

Jessica Levinson writes about the intersection of law and government every Monday. She is an Associate Clinical Professor at Loyola Law School. Read more of her posts here.