Academic journal article South Dakota Law Review

Raising the Question of Whether Out-of-State Political Contributions May Affect a Small State's Political Autonomy: A Case Study of the South Dakota Voter Referendum on Abortion

Academic journal article South Dakota Law Review

Raising the Question of Whether Out-of-State Political Contributions May Affect a Small State's Political Autonomy: A Case Study of the South Dakota Voter Referendum on Abortion

Article excerpt

I. INTRODUCTION
II. THE ROLE AND VALUES OF FEDERALISM IN THE AMERICAN
SYSTEM
    A. THE VALUES OF FEDERALISM
    B. FEDERALISM AS A CONSTITUTIONAL DOCTRINE
    C. HORIZONTAL FEDERALISM
III. THE SOUTH DAKOTA VOTER REFERENDUM ON ABORTION
    A. WOMEN'S LIFE AND HEALTH PROTECTION ACT
    B. SOUTH DAKOTA'S ABORTION REFERENDUM
IV. CONCLUSION

I. INTRODUCTION

The American political and constitutional system is based heavily on state autonomy. Under the system of federalism, states occupy their own independent sphere of authority separate from and pre-existing to the sphere of authority of the federal government. (1) Within this independent sphere of sovereignty, each state possesses its own legal and political autonomy. This structure has defined the American political and constitutional system ever since the nation's founding.

The federalism revolution waged by the Rehnquist Court sought to breathe new life into the federalist structure of the American system of government. (2) This federalism revolution focused on the relationship between the states and the federal government, attempting to draw limits around the federal government's ability to infringe on state autonomy, as well as strengthening particular areas of state authority. But the federalism structure inherent in the American political system presumes not only that states occupy a separate level of authority from that of the federal government, but also that each state retains its own independence and autonomy from every other state. Each state, for instance, must be free to enact and enforce its own set of laws. This ability, however, may be jeopardized by current patterns of political fundraising and campaign expenditures. For instance, if a state is holding a voter referendum on a particular issue of national importance, the state's decision on that referendum may be significantly affected by out-of-state interests, particularly if those out-of-state interests contribute a substantial majority of the political campaign expenditures relating to that issue. (3) Such was the case in South Dakota, when it held a voter referendum on abortion in 2006. Thus, the question becomes whether the outcome of that referendum better represents the wishes of the people of South Dakota or the interests and wishes of organizations and individuals in outlying states.

This article will examine the amount of out-of-state money coming into South Dakota during that 2006 voter referendum and explore whether sparsely populated states such as South Dakota are particularly vulnerable to influxes of out-of-state campaign money. Although the First Amendment may preclude any regulations in this respect, the effects of out-of-state political fundraising and campaign expenditures could be such so as to jeopardize a small state's electoral autonomy. (4)

II. THE ROLE AND VALUES OF FEDERALISM IN THE AMERICAN SYSTEM

A. THE VALUES OF FEDERALISM

Through the maintenance of two levels of competing governments--e.g., state and national--federalism serves to check the power of the federal government. (5) Federalism also achieves greater political accountability, the assumption being that the smaller the governing unit (e.g., the state) the more likely it is to be responsive to the needs of the community. (6) Smaller political units are also able to foster a deeper sense of community and increased opportunities for political participation. (7) As Professor Wechsler has observed, the states "are the strategic yardsticks for the measurement of interest and opinion, the special centers of political activity, [and] the separate geographical determinants of national as well as local politics." (8)

Yet another value of federalism lies in its facilitation of states as laboratories of experimentation. (9) This value is reflected in Justice Brandeis's observation that "one of the happy incidents of the federal system [is] that a single courageous state may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country. …

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