Academic journal article Texas Law Review

But Some Are More Equal: Race, Exclusion, and Campaign Finance

Academic journal article Texas Law Review

But Some Are More Equal: Race, Exclusion, and Campaign Finance

Article excerpt


But Some Are More Equal: Race, Exclusion, and Campaign Finance

I. Introduction

Legal academics who call for campaign finance reform-let us call them "Reformers"-have overlooked the significance of race, and as a result their critiques of constitutional jurisprudence and reform proposals remain woefully incomplete. Studies reveal that people of color comprise approximately thirty percent of the nation's population,' but represent only about

one percent of those who make significant political contributions to federal campaigns.2 Issues of racial identity necessarily evoke questions of representation in the political process, and the qualitative nature of representation is in part ally product of the laws and procedures that have historically excluded people of Commentators, courts, and legislatures have extensively analyzed other facially race-neutral procedures that have historically excluded people of color from the political process, such as at-large electoral districts, poll taxes, and literacy tests,4 and they are beginning to analyze contemporary devices such as punch-card ballots.5 Although the doctrines and regulations governing the funding of campaigns are not less significant in shaping the racial distribution of political influence, the interplay between race and campaign finance remains largely unexamined.6

This Article employs race to expose fundamental shortcomings of existing campaign finance jurisprudence and to promote the development of more comprehensive reforms. Current campaign finance jurisprudence and the critiques made by the Reformers are founded upon normative assumptions about democracy that ignore important historical and social realities related to race. Existing frameworks fail to acknowledge that past statemandated discrimination against racial minorities has shaped the current distribution of property, which in turn hinders the ability of many people of color to participate fully in a privately financed political system.

By using the First Amendment to undermine legislative restrictions on the use of political money, courts effectively enshrine the existing distribution of property as a baseline for political advantage. This situation is especially troubling because courts generally allow for legislative restrictions that redistribute advantages in the economic sphere, and voting rights doctrine often mandates racial inclusion and equality in the political sphere.7 In addition, class-based legislative reform proposals sometimes inadvertently thwart the interests of people of color. An exclusively class-based approach to reform is inadequate because race operates as a distinct political identity worthy of indepent analysis in the campaign finance context. Racial minorities play an important political role in democracy that transcends their class interests.8 The Reformers' faliure to examine race prevents them from fully identifying and rectifying the flaws in the current campaign finance

system, and thus subtracts from the utility of both their critiques of constitutional jurisprudence and their legislative reform proposals.

Though some assert that decisionmakers should not consider race in a "colorblind" society,9 such a consideration need not entail the employment of a "race card" that trumps all other matters and singularly insists on racespecific solutions. Instead, just as scholars and legal decisionmakers balance such concerns as individual rights, economic efficiency, and general welfare,10 they can use race as one analytical tool in conjunction with other factors. A consideration of racial history and context allows scholars and legal decisionmakers to avoid the pitfalls of the "colorblind card," an ideological extreme that mechanically trumps historical considerations, removes relevant issues from the table, and silences discussion.

Part II of the Article reviews understandings about democracy that Reformers and supporters of current campaign finance jurisprudence tend to emphasize. …

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