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.

• Author: Garry, Patrick M.

1. 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)

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

   1. 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." (10) Underlying this social laboratory value, as well as all the other values of federalism, is the right of individuals to move from state to state, and hence "vote with their feet" on the desirability or wisdom of particular state policies. (11)

      By preserving a federal-state political system, federalism promotes "competition among governments for citizens and corporations (and their related tax dollars), thereby maximizing choice and utility for everyone and resulting in an aggregate increase in social welfare." (12) Federalism "assures a decentralized government that will be more sensitive to the diverse needs of a heterogeneous society." (13) It allows different communities to choose different laws and modes of governance that reflect the diversity of their citizens' preferences. (14) To the extent that local majorities in different states have divergent preferences, a federal system can result in a higher degree of citizen satisfaction than a unitary system can. (15) If, for example, a majority in one state prefers a policy of high taxes and high levels of government services, whereas the majority in another state favors low taxes and fewer government services, both majorities can be accommodated by their respective state governments. (16) As Professor Steven Calabresi explains, federalism is a vital ingredient of America's constitutional democracy:

      It prevents religious warfare, it prevents secessionist warfare, and it prevents racial warfare. It is part of the reason why democratic majoritarianism in the United States has not produced violence or secession for 130 years, unlike the situations for example, in England, France, Germany, Russia, Czechoslovakia, Yugoslavia, Cyprus, or Spain. There is nothing in the U.S. Constitution that is more important or that has done more to promote peace, prosperity, and freedom than the federal structure of that great document. (17) B. FEDERALISM AS A CONSTITUTIONAL DOCTRINE

      Federalism reflects the balancing of power between the states and national government. (18) The Constitution establishes a political system of dual sovereignty, involving both state and national governments. The framers "split the atom of sovereignty" by designating two different political entities (federal and state), "each protected from incursion by the other." (19) This division of authority between the state and federal governments, according to the framers, would prevent any distortion in the balance of power between the different levels of government. (20)

      Although its purpose was to create a strong national government, the Constitution also sought to preserve the independent integrity and lawmaking authority of the states. (21) This bifurcated system of power was codified in the Tenth Amendment, which divides sovereign power between those delegated to the federal government and those reserved to the states. (22)

      The framers believed that a federalist structure of independent state governments would serve as a limitation on the national government's exercise of power. (23) Indeed, federalism concerns were so important to the Founders that nearly all the arguments opposing the new Constitution involved the threat to state sovereignty. (24) Under the framers' view of federalism, the national government would exert supreme authority only within the limited scope of its enumerated powers; the states meanwhile would exercise the remainder of sovereign authority, subject to the restraint of interstate competition from other states. (25)

      Although there is no single "federalism" clause in the Constitution, the Tenth and Eleventh Amendments are often the focus of the Court's federalism decisions. (26) In addition to these two amendments, references to federalism pervade the constitutional scheme. Throughout the text, the framers use the term "states" to denote independent entities of sovereignty. (27) The term "states" is also used in a way that suggests the framers "intended that these governments possess some of the traditional immunities that states enjoyed" prior to adoption of the Constitution. (28)

      Because the framers took for granted the sovereign powers of the states, the Constitution is somewhat one-sided in its references to governmental authority. It explicitly lists the powers of the federal government; but to the extent it defines state powers, it does so primarily through negative implication, by setting out the limited constraints on those powers. (29)

   3. Horizontal Federalism

      The typical view of federalism is one of vertical federalism--the relationship between the central government and the states. However, there is also the notion of horizontal federalism, which refers to relations between the states. (30) Implicit within the idea of vertical federalism is the idea that there should be a degree of horizontal federalism. This horizontal federalism reflects the view that each state must have a sufficient degree of independence and autonomy from every other state. (31) Indeed, it is this horizontal federalism that may be most threatened by the existing practices of political fundraising and campaign expenditures that go on between the states. (32)

3. THE SOUTH DAKOTA VOTER REFERENDUM ON ABORTION

   1. Women's Life and Health Protection Act

      In 2005, an act to create a South Dakota task force to study abortion was passed by an overwhelming majority of the 80th Session of the South Dakota Legislature. (33) Governor Mike Rounds appointed the Task Force members. (34) In September and October of 2005, the Task Force conducted four days of hearings at which both pro-choice and pro-life experts testified. The Task Force also reviewed the testimony of 1,940 women who had abortions. (35) The results of their findings were published in a seventy-one page report in December 2005. The Report concluded that life begins at conception, and that therefore abortions terminate human life. (36)

      The Task Force Report led to...