By Nicole Sweeny Etter
On election day, you duck into the poll booth with a ballot to record your voting preferences (that is, if you’re among the roughly half of eligible voters who bother to vote even during US presidential elections). Maybe you donate to a favorite candidate or political party. Perhaps you’re one of the really involved citizens who goes door-to-door on behalf of a candidate. Maybe you even run for office yourself. In his opinion in McCutcheon v. Federal Election Commission, Chief Justice John Roberts describes all of these options as ways in which citizens can exercise their right to participate in the electoral process, noting, “There is no right more basic in our democracy than the right to participate in electing our political leaders.” But the laws that govern how Americans participate in elections — particularly in the realms of voting and campaign spending — have changed dramatically in recent years. And the messages can be contradictory.
Robert Yablon, an assistant professor at the Law School, examines those contradictions in his latest paper, “Voting, Spending, and the Right to Participate.” While much has been written about the legal doctrines governing voting and political spending, Yablon takes a new approach by comparing voting and spending laws side by side, and providing a more holistic view of political participation. With the 2016 general election drawing closer, his work is timelier than ever.
“I find it interesting to work on this as we enter an election cycle and see a lot of ongoing litigation and discussion in the political arena, whether it’s politicians who are very critical of the Supreme Court’s Citizens United v. Federal Election Commission decision or politicians who take various stands on voter identification laws,” he says. “It’s not just a legal issue; it’s part of our broader political discourse.”
Yablon, who teaches Law of Democracy, among other courses, has long been fascinated by election law. “It’s the idea that election law underlies so much of the rest of the law we
have,” he explains. “The policies that we make as a society in large part are a product of the electoral institutions that put people in office. Election laws matter in terms of the people who are then in Washington or in the state legislature, doing the work that we need them to do.”
THE RIGHT TO PARTICIPATE
Yablon’s latest research was inspired by the Supreme Court’s 2014 decision in McCutcheon v. Federal Election Commission, in which the court ruled 5–4 against aggregate limits on donor contributions to candidates, political parties, and political action committees (PACs), which had previously been capped at $123,200 per election cycle. McCutcheon continued down the road paved by the Supreme Court’s 2010 decision in Citizens United, which had opened the door to corporations and unions spending unlimited amounts on super PACs and nonprofits.
“In McCutcheon, the chief justice gives this very eloquent description of the right to participate that embraces both voting and contributing, so that piqued my curiosity. This right to participate is not something that is delineated in those terms in the Constitution or electoral statutes, so it’s a new concept that he’s developing.”
Yablon was convinced that there was much more to explore in the right to participate politically. “It’s used in McCutcheon in an offhand way, and there’s no explanation of what is the right to participate. Constitutionally, where does it come from?” Yablon asks.
His research comes to the conclusion that “the building blocks of the right to participate are scattered across the Constitution and its amendments,” even if the right to participate is not explicitly stated.
In his McCutcheon opinion, Roberts puts campaign spending in the same category as other forms of political participation, writing: “Citizens can exercise that right in a variety of ways: they can run for office themselves, vote, urge others to vote for a particular candidate, volunteer to work on a campaign, and contribute to a candidate’s campaign.”
Some critics have alleged that this framing demotes the fundamental right to vote, but Yablon doesn’t think that’s necessarily the case. Instead, thinking about political participation more holistically can be a way to harmonize the law in ways that could ultimately be more protective of the right to vote.
Regardless of whether voting and campaign spending hold equal weight in citizens’ overall right to participate in the electoral process, the courts have treated them differently. Courts have focused on the First Amendment when analyzing campaign finance regulations and on equal protection when considering voting rights regulations.
“Once I started examining the voting and spending cases side by side, I saw the extent to which courts have been saying things that are in tension with each other,” Yablon says. ”Often, the specifics of the court’s analysis in voting and spending cases had diverged in ways that seemed difficult to explain.”
To illustrate, Yablon points to the 2010 case of Citizens United v. FEC, which he calls “the biggest campaign law case of the last generation.”
“The court spoke in dramatic terms about how severely the challenged law burdened the rights of corporations that wished to spend money on elections. At the same time, the court framed the government’s regulatory interests in very narrow terms, stating that spending restrictions are permissible only when necessary to prevent quid pro quo corruption. And the court seemed suspicious of the underlying motives of the legislators who enacted the law.”
Compare that with the Supreme Court’s 2008 decision in Crawford v. Marion County, one of the biggest voting decisions in the past decade. “In that case, the court upheld Indiana’s voter identification law,” Yablon says. “The court didn’t say in broad terms that any voter identification law will always be okay, but they were at least open to the idea that voter identification laws
are allowable. They downplayed the burden that Indiana’s law imposed on the rights of voters; they framed the government’s regulatory interests in expansive terms; and they were highly deferential toward the legislature, despite evidence of the law’s partisan motives.”
The Crawford ruling opened the door to a flood of new regulatory activity. Since that decision, nearly 50 percent of states have tightened voting rules in an ostensible effort to prevent voter fraud, though critics of the measures contend that they unfairly penalize poor and minority voters.
So who holds the right to participate, and when? “The law has long conferred voting rights and spending rights on somewhat different populations. With voting, we take it for granted that
only citizens can vote, you have to be 18 to vote; in most places convicted felons can’t vote. But the law generally grants the right to spend on political candidates or parties more broadly: all of those people can still spend. And maybe that’s appropriate. But thinking more holistically about the right to participate forces us to reflect on why we’ve drawn these lines and to consider whether they’re the right ones.”
It may also highlight some equity issues that existing legal doctrine tends to overlook, Yablon says.
“A law that sets a contribution limit at many thousands of dollars may indeed impose burdens on someone who would like to give more, but such a person is unlikely to be marginalized from the political process. He or she will still be able to vote, still be able to contribute at levels more than most people can afford, and still be more likely than most to have a direct relationship with candidates and government officials, or at least find a way to bend their ear,” Yablon says.
“On the flip side, when you think about a voter identification law, that law is more likely to burden those already on the margins. Such people are highly unlikely to have the means to donate to a campaign; they’re less likely to have a direct link to candidates and officials. So their ability to cast a vote is the one participatory thing they can do. When that is limited, their right to participate can evaporate completely.”
So what’s the solution? Thinking more deeply and holistically about the right to participate is the first step, Yablon says. He believes that part of the reason the court has become relatively more protective of political spending and relatively less protective of voting is because no one is looking at the big picture. “Just reframing the discussion in that broader way might encourage courts to recalibrate how they’re weighing the benefits and burdens of these regulations,” Yablon says. “There are also some things that we might want to do to encourage participation. Even if a court is skeptical of restrictions on spending, there are policies that you can adopt that facilitate spending by those who wouldn’t otherwise have the means to do so: matching funds, for example, or public funding of campaigns. Those are ways to help vindicate the right to participate.” Yablon plans to continue to develop his research, particularly along the lines of how electoral participation can best be facilitated in our current system of largely unregulated political spending. “What can be done to help ensure participation by people who might otherwise feel marginalized or who fear that their voices are drowned out by big spenders? Are there ways to empower normal, everyday voters?”
Yablon asks. “That’s what I’d like to figure out.”