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Campaign Finance and the Equal Protection Clause

Free Speech for People’s John Bonifaz writes that the Fourteenth Amendment’s Equal Protection Clause, which invokes the Constitutional promise of political equality for all, should be central to campaign finance questions.

October 22, 2014

This entry is part of an ongo­ing blog series respond­ing to an online symposium collab­or­a­tion with the NYU Law Review, consid­er­ing the future of money in polit­ics in the post-Citizens United legal land­scape.

The First Amend­ment under­lies any conven­tional consti­tu­tional analysis of today’s campaign finance system.  Seen in this context, the public interest in address­ing the corrupt­ing threat posed to our demo­cracy by the big money domin­ance of our elec­tions is juxta­posed against the purpor­ted free speech rights of wealthy indi­vidu­als (and now, under Citizens United, corpor­a­tions and unions) to spend their money to influ­ence elect­oral outcomes.

But, there is another part of the US Consti­tu­tion which ought to be applied in any scru­tiny of the campaign finance ques­tion: the Equal Protec­tion Clause of the Four­teenth Amend­ment.  Through that lens, we can see that an exclu­sion­ary system which is open only to the wealthy few and which plays an integ­ral role in our elec­tions viol­ates the equal protec­tion rights of those locked of the process.  Two lines of Supreme Court rulings, taken together, make this case.

First, the Supreme Court has made clear that wealth discrim­in­a­tion in the polit­ical process is prohib­ited under the Equal Protec­tion Clause.  In its 1966 decision in Harper v. Virginia Board of Elec­tions,[1] strik­ing down the poll tax in Virgini­a’s state elec­tions, the Court ruled: “A State viol­ates the Equal Protec­tion Clause of the Four­teenth Amend­ment to the U.S. Consti­tu­tion whenever it makes the afflu­ence of the voter or payment of any fee an elect­oral stand­ard. Voter qual­i­fic­a­tions have no rela­tion to wealth…”[2] The poll tax, a fee charged to citizens through­out the South as a require­ment for exer­cising their right to vote – which discrim­in­ated against poor African-Amer­ican voters as well as poor white voters, was no longer consist­ent with the Consti­tu­tion.  

In issu­ing this ruling, which came two years after the Twenty-Fourth Amend­ment to the Consti­tu­tion banned poll taxes in federal elec­tions, the Supreme Court reversed its two prior decisions uphold­ing the poll tax. In 1937 (Breed­love v. Suttles[3]) and in 1951 (Butler v. Thompson[4]), poor voters had chal­lenged the poll tax on equal protec­tion grounds. In both cases, the Court found consti­tu­tional justi­fic­a­tion for requir­ing citizens to pay a fee in order to vote. But Justice William O. Douglas, speak­ing for the Court in the 1966 Harper case, stated:

[T]he Equal Protec­tion Clause is not shackled to the polit­ical theory of a partic­u­lar era. In determ­in­ing what lines are uncon­sti­tu­tion­ally discrim­in­at­ory, we have never been confined to historic notions of equal­ity, any more than we have restric­ted due process to a fixed cata­logue of what was at a given time deemed to be the limits of funda­mental rights. Notions of what consti­tutes equal treat­ment for purposes of the Equal Protec­tion Clause do change. [emphasis in original][5]

Six years later, in Bullock v. Carter,[6] the Court struck down a high candid­ate filing fee system in Texas on equal protec­tion grounds, apply­ing a similar analysis.  “[W]e would ignore real­ity,” the Court ruled, “were we not to recog­nize that this system falls with unequal weight on voters, as well as candid­ates, accord­ing to their economic status.”  

In a second line of rulings, the Court has found state action in a system which has become “part of the machinery for choos­ing offi­cials,”[7] even if that system is not mandated by law.  From 1927 to 1953, the Court decided the white primary cases,[8] each time inval­id­at­ing an exclu­sion­ary elect­oral process which blocked African-Amer­ican voters and candid­ates from equal and mean­ing­ful polit­ical parti­cip­a­tion.  But, the last white primary case the Court decided, Terry v. Adams, is most relev­ant to the equal protec­tion scru­tiny that should be applied to today’s campaign finance system.  In Terry, the Court struck down, on Four­teenth Amend­ment grounds, an exclu­sion­ary endorse­ment process of an all-white private polit­ical club, the Texas Jaybird Asso­ci­ation.  The Court found that the state cannot allow for such an exclu­sion­ary system which had become “an integ­ral part” of “the elect­ive process that determ­ines who shall rule and govern.”[9]

The white primary of the past has now been replaced by the wealth primary.[10]  Like the white primary, the wealth primary of today has become “an integ­ral part” of “the elect­ive process that determ­ines who shall rule and govern.”  Candid­ates who win the wealth primary – who outraise and outspend their oppon­ents – almost invari­ably win elec­tion.[11]  And, like the poll tax and high candid­ate filing fees of the past, the wealth primary is discrim­in­at­ory based on economic status.  The wealth­i­est few—­less than one percent of the popu­la­tion—­donate more than 80% of campaign dollars.[12]  The vast major­ity of Amer­ic­ans cannot afford to make large campaign contri­bu­tions and are blocked from parti­cip­a­tion in this process.

Today’s campaign finance system is anti­thet­ical to the Equal Protec­tion Clause and the consti­tu­tional prom­ise embed­ded in that clause of polit­ical equal­ity for all.

For a more extens­ive discus­sion of the wealth primary argu­ment, see Jamin Raskin and John Bonifaz, “Equal Protec­tion and The Wealth Primary,” 11 Yale Law & Policy Review 273–332 (1993).

John Bonifaz is a consti­tu­tional attor­ney and the co-founder and pres­id­ent of Free Speech For People

[1] Harper v. Virginia Board of Elec­tions, 383 U.S. 663 (1966).

[2] Id. at 666.

[3] Breed­love v. Suttles, 302 U.S. 277 (1937).

[4] Butler v. Thompson, 341 U.S. 937 (1951).

[5] Harper, 383 U.S. at 669.

[6] Bullock v. Carter, 405 U.S. 134 (1972).

[7] Terry v. Adams, 345 U.S. 461, 481 (1953) (Clark, J., concur­ring).

[8] Nixon v. Herndon, 273 U.S. 536 (1927); Nixon v. Condon, 286 U.S. 73 (1932); Smith v. Allwright, 321 U.S. 649 (1944); and Terry v. Adams, 345 U.S. 461 (1953).

[9] Terry, 345 U.S. at 469.

[10] Jamin Raskin and John Bonifaz, “Equal Protec­tion and The Wealth Primary,” 11 Yale Law & Policy Review 273–332 (1993).

[11] Blair Bowie and Adam Lioz, Billion-Dollar Demo­cracy: The Unpre­ced­en­ted Role of Money in the 2012 Elec­tions, Demos and US PIRG Educa­tion Fund, Janu­ary 2013, pg. 18.

[12] Money in Polit­ics: Who Gives, Fact Sheet of Amer­ic­ans for Campaign Reform (now Issue One), Decem­ber 9, 2010.