In “Supreme Injustice,” Thomas Edsall cites several legal experts who purportedly disagree with our criticism of the current Supreme Court for judging limits on the ability to contribute money to candidates very strictly and limits on the right to vote very leniently. The basic objection they voice is that the legal frameworks governing the voting and campaign finance contexts are different. That is entirely correct as a descriptive matter, but that doesn’t mean that the Court has it right.
The Court’s inconsistent treatment of voting rights and money in politics cases has been noted and criticized by a number of prominent legal scholars. And in the recent McCutcheon decision, the Court itself grouped the rights to vote and contribute in elections as part of the basic democratic “right to participate in electing our political leaders.” Both rights are protected by the First Amendment. Thus it is fair to argue that the right to vote, which strikes us as even more central to “participation in electing” our leaders, should be afforded at least as much protection as the right to contribute. And if the concept of speech moves you more than democratic participation, voting for a candidate is no less expressive of support than contributing money to her.
In McCutcheon, which struck down aggregate contribution limits in federal elections, the Court used lofty language that evokes the importance of the right to vote in our democracy. In addition to the “right to participate in electing our political leaders,” the Court speaks of the right of “constituents” “to support candidates who share their views and concerns” and to expect that their “representatives” will “be cognizant of and responsive to those concerns.” We don’t think we are going out on a limb when we say that those fundamental constitutional interests in political participation and representation should have equal purchase in voting rights cases.