Academic journal article Harvard Law Review

Of Ballot Boxes and Bank Accounts: Rationalizing the Jurisprudence of Political Participation and Democratic Integrity

Academic journal article Harvard Law Review

Of Ballot Boxes and Bank Accounts: Rationalizing the Jurisprudence of Political Participation and Democratic Integrity

Article excerpt

Participation in the political process comes in many forms. A few people run for office. An even smaller number spend more money than most will make in a lifetime to support their policy preferences. (1) Millions make small contributions to candidates or volunteer for campaigns. (2) But by far the most common way Americans take part in our democracy is through voting. (3) Without the participation of those voters, elected institutions would lack legitimacy, or even cease to function. Yet, despite the ballot box lying at the heart of our constitutional structure and representing the most frequent means by which Americans participate in the political process, your ballot receives less protection under the Constitution than your checkbook. Indeed, the level of protection that the current constitutional framework provides to a given form of participation ends up being inversely proportional to the number of Americans who use that method to engage with our elected institutions. The constitutional doctrine governing the political process has twisted into the mirror image of what one would expect a healthy democracy to employ. This Note identifies the case law creating that distortion and suggests that the doctrine can be analyzed under a uniform analytical framework that weighs a fundamental right to political participation against a government interest in the integrity of elected institutions. It concludes by proposing two approaches that would improve the doctrine's coherence and increase political participation, which are both values that the current constitutional regime has undermined.

Cases involving campaign finance regulations and voting rights both start in the same place: a government actor tries to limit a form of political participation. Restricting the financing of campaigns for political office potentially infringes on the First Amendment rights of candidates, donors, and supporters. Many voting rights cases evaluate constitutional protections for suffrage and the rights of voters to political expression and association. In both, the Supreme Court has recognized an unwritten but fundamental constitutional right to participate in the political process. The boundaries of that right have expanded over time when expressed through money, but not when expressed through the polls. Complicating the doctrinal framework, government actions limiting political participation are subject to varying degrees of scrutiny. Government actors have responded by invoking an interest in preserving the integrity of and public confidence in government institutions. That interest, however, receives far greater deference in the voting rights cases than in those involving campaign finance.

This Note argues that while the common interest and right implicated by these doctrines weigh in favor of a more consistent jurisprudence, the case law has instead developed incoherently, diverging with destructive pace in the past decade. First, the Court has upheld state voter identification laws despite their burden on participation and the weakness of the laws' link to the government's integrity interest. Second, the Supreme Court has struck down independent expenditure limits --that is, limits on expenditures not made in coordination with candidates --in the face of overwhelming evidence that such regulations serve the integrity interest. The assumptions and reasoning employed thus inconsistently protect foundational constitutional values. Absent an effort to restore coherence to the constitutional jurisprudence of the electoral process, the ability to spend money in support of a candidate will continue to receive more protection than the right to vote for one. That imbalance floods the political conversation with the preferences of wealthy interests while simultaneously threatening the suffrage of the poorest and least politically powerful elements of society, which contain people far less likely to be able to utilize the expansive protections granted to speech. …

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