Voting, Spending, and the Right to Participate
61 Pages Posted: 21 Apr 2016 Last revised: 18 May 2017
Date Written: April 18, 2016
While the law governing the electoral process has changed dramatically in the past decade, one thing has stayed the same: Courts and commentators continue to view voting in elections and spending on elections through distinct constitutional lenses. On the voting side, a makeshift Equal Protection-oriented framework guides judicial analysis. On the spending side, First Amendment principles predominate. Recent cases have been applying these doctrines in ways that are fairly accepting of voting regulation and highly dubious of campaign-finance regulation. Key voting and spending precedents seldom cite each other. Similarly, election law scholars typically address voting and spending in isolation.
This Article challenges the prevailing, bifurcated approach to voting and spending law. Its central thesis is that the law's disparate treatment of voting and spending is unjustified. Voting and spending are, at bottom, two methods of participating in the electoral process. Conceiving of them as two aspects of a broader right to participate -- a right the Supreme Court recently articulated, but did not develop, in McCutcheon v. FEC -- offers a principled basis to harmonize voting and spending law and reorient election law discourse.
Keywords: voting, voter ID, campaign finance, contributions, expenditures, participation, Citizens United, McCutcheon, Crawford, election law, First Amendment, Equal Protection
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