Democracy Divided: Campaign Finance Regulation and the Right to Vote

Yasmin Dawood


The McCutcheon and Shelby County decisions illustrate a profound divide on the Supreme Court with respect to the judicial supervision of democracy. But what is noteworthy, to my mind, is the sheer number of dimensions within which this divide exists. The justices disagree about a range of issues including, among other things, the meaning of various precedents, the correct interpretation of constitutional provisions, the factual record, and the proper role of legislatures and courts in the regulation of the democratic process.

But I think the divide goes even deeper than this. There is almost no consensus on the Court even with respect to the basic principles of democracy. In this Essay, I focus on Chief Justice Roberts’ invocation of a “right to participate” in McCutcheon to illustrate this divide and to consider its implications for democratic government.[1] The Chief Justice described the right to participate as the most basic democratic right. I show how this new right of participation subsumes within it the right to vote and the right of individuals to donate to electoral campaigns. I suggest that by placing the activities of voting and contributing in a common matrix of participation, the Court has demoted the right to vote from its usual position as the most fundamental democratic right. It also has the effect of elevating the right to contribute as normatively equivalent to the right to vote. I argue that the Court’s deployment of this new right to participate has significant implications for both the right to vote and for campaign finance regulation.

This Essay proceeds in three sections. Part I analyzes this new right of participation in McCutcheon. Part II turns to a consideration of participation in the context of Shelby County. Part III considers the two cases together, and argues that participation by voting should be afforded normative priority over participation by contributing money.


In McCutcheon, Chief Justice Roberts began his plurality opinion with the following statement: “There is no right more basic in our democracy than the right to participate in electing our political leaders.”[2] At first blush, this statement appears to be a laudable recognition of the importance of political participation. The right to participate in “electing our political leaders” is the most basic right in democracy. Who could object to this?

He then stated the following:

"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.[3]"

On close inspection, this passage has a number of troubling implications. Chief Justice Roberts uses the umbrella of “participation” to subsume five separate activities that citizens can engage in: voting, running for office, encouraging others to vote for a particular candidate, volunteering on a campaign, and contributing to a candidate’s campaign. The placement of these five activities in a common matrix of participation suggests that these activities are in some sense equivalent in their importance to one another. Notice that the Chief Justice did not establish a priority among the various ways to participate in electing political leaders. He did not say, for example, that “there is no right more fundamental than the right to vote.” Indeed, there is no mention of the “right” to vote since only the exercise of voting is listed. And voting is just one of five ways to exercise the right to participate in electing political leaders. By subsuming voting within the larger umbrella of the “right to participate,” the right to vote is no longer paramount. This new participation right has essentially usurped the position that was once reserved exclusively for the right to vote.[4]

The right of participation plays a starring role in the Court’s decision. At issue in McCutcheon was the constitutionality of the aggregate limits on contributions. The aggregate limits permitted an individual to donate a total of $48,600 to federal candidates and a total of $74,600 to other political committees, for a grand total of $123,200 during the 2013-2014 election cycle.[5] Yet Mr. McCutcheon wished to donate a total of $135,000 in this cycle.[6] The Court held that the aggregate limits were an unconstitutional limit on the First Amendment. Chief Justice Roberts explained the decision in terms of the right to participate: The aggregate limits at issue in the case were struck down because they “seriously restrict[] participation in the democratic process.”[7]

According to the Court, the aggregate limits “impose a special burden on broader participation in the democratic process” because a donor is required to contribute at a lower level than other individuals in order to be able to contribute to more candidates.[8] Notice that for the Court “broader participation” does not mean what is usually meant by that phrase. Usually by “broader participation” we mean participation by greater numbers of people in society, but for the Court it means more participation by a single (wealthy) individual. The McCutcheons of the world, explained the Court, do not have recourse to “[o]ther effective methods of supporting preferred candidates or causes” since these methods “are reserved for a select few, such as entertainers capable of raising hundreds of thousands of dollars in a single evening.”[9] For this reason, the right of wealthy individuals to participate broadly must be protected by the Court.

What does this right of participation entail? According to the Court, the First Amendment protects the participatory activity of “contributing to someone who will advocate for [the donor’s] policy preferences.”[10] The plurality brushed aside any concerns that such an exchange would amount to corruption.[11] The only kind of corruption that counts is quid pro quo corruption,[12] and this kind of corruption does not arise even if it affords the donor with “‘influence over or access to’ elected officials or political parties.”[13] Ingratiation and access do not amount to corruption. Nor is corruption equivalent to the “general gratitude a candidate may feel toward those who support him or his allies.”[14]

We might imagine that ingratiation and access are at best a lamentable feature of the democratic process and at worst an indication of possible corruption. But for the Roberts Court, ingratiation and access “embody a central feature of democracy—that constituents support candidates who share their beliefs and interests, and candidates who are elected can be expected to be responsive to those concerns.”[15] While it is true that we expect our representatives to be responsive, the question is whether it is acceptable for elected representatives to be more responsive to wealthy donors as compared to those constituents who are not capable of making large contributions to politicians. As Justice Breyer noted in dissent, the plurality “fails to recognize the difference between influence resting upon public opinion and influence bought by money alone.”[16] It is even more troubling, though, that the Court has effectively recast a phenomenon that would have once been called “corruption” by referring to it by the far more palatable label of “participation.”

The Court admitted that the “line between quid pro quo corruption and general influence may seem vague at times” but it insisted nonetheless that this distinction was required to protect free speech.[17] According to the Court, quid pro quo corruption is triggered only with “an effort to control the exercise of an officeholder’s official duties.”[18] The Court explained: “Representatives are not to follow constituent orders, but can be expected to be cognizant of and responsive to those concerns. Such responsiveness is key to the very concept of self-government through elected officials.”[19] Responsiveness to constituent concerns is without doubt an important aspect of democratic government. A problem arises, though, if elected representatives are not responsive to the concerns of the vast majority of their constituents because these citizens lack the financial means to purchase access.

The Court’s new right of participation raises two interrelated problems. The first is the outsized political power of the wealthy.[20] As Professor Deborah Hellman points out in her contribution to this symposium, political participation consists of a hybrid sphere because it is governed in part by the norms of the political sphere and in part by the norms of the market.[21] It is important, she argues, for the scope of the market to be appropriately limited in the domain of politics.[22] For Lawrence Lessig, the problem is that Congress has become dependent on a tiny minority of the population, namely funders and lobbyists.[23] Although there is little systematic evidence that money buys influence,[24] the research does seem to suggest that money “likely buys access, small favors, energy in casework, intercession with regulators, and a place on the legislative agenda.”[25] For the Court, however, the purchase of access embodies “a central feature of democracy,” namely responsiveness to constituent wishes. And, as it turns out, the research shows that the positions adopted by elected representatives are more responsive to the preferences of the affluent as compared to the preferences of the vast majority of citizens.[26] Under the Court’s theory of democracy, however, it would appear that this asymmetrical responsiveness would not be of any great concern.

The second problem is the diminished participation of ordinary citizens. The real issue, as Guy-Uriel Charles points out, is that not enough people are participating in democratic politics.[27] Spencer Overton argues that the state has an interest in having as many citizens as possible contributing to electoral campaigns because broader participation makes government more accountable and responsive.[28] But instead, the “donor class,” a small and wealthy group, funds the bulk of American politics.[29] It is worth observing that it is precisely the participation rights of this donor class that the Court is avidly protecting in McCutcheon.


When we turn to the Court’s recent decision about participation and voting under the Fourteenth Amendment, we do not see the same full-throated alarm about the obstacles to participation. In Shelby County, Chief Justice Roberts wrote for the plurality that “there is no denying . . . that the conditions that originally justified [the preclearance] measures no longer characterize voting in the covered jurisdictions.”[30] The Court held that section 4(b) of the Voting Rights Act was unconstitutional because the coverage formula was not responsive to “current needs” and hence violated the principle of equal sovereignty of states.[31] Roberts noted that “voting discrimination still exists; no one doubts that.”[32] But at the same time, “[o]ur country has changed.”[33]

While the plurality viewed the reduction in discrimination as a sign that the country had changed, the dissent viewed that same phenomenon as providing proof that preclearance was both effective and necessary. Justice Ginsburg argued that preclearance was required to protect voting rights and to prevent backsliding.[34] In her view, the Court should be deferential to Congress’s determination that “the scourge of discrimination was not yet extirpated.”[35] With respect to the Court’s holding, Justice Ginsburg stated: “Throwing out preclearance when it has worked and is continuing to work to stop discriminatory changes is like throwing away your umbrella in a rainstorm because you are not getting wet.”[36] The plurality’s solicitous concern in McCutcheon for the participation rights of wealthy donors stands in striking contrast to its apparent lack of concern for the participation rights of minority voters in Shelby County. The dissenting justices took the opposite view. At a more abstract level, there is also a divide in terms of the democratic problem that is supposed to be solved. For the dissent in both cases, the problem is the racial discrimination or the political inequality or the corruption that results when political actors and private entities are not regulated. For the majority, the problem is the intervention of the government in regulating the electoral process—through the preclearance process or through setting aggregate caps on contributions.

In the past, legislative bodies enacted electoral rules (such as poll taxes and vote dilution mechanisms) that disenfranchised certain people or reduced their political power, and the Supreme Court stepped in to prevent these majorities from undermining democratic rights. Using John Hart Ely’s terminology, the Court was acting in a representation-reinforcing participation-enhancing way when it engaged in judicial review to protect the right to vote.[37]

Is this how we would describe the recent election law decisions of the current Supreme Court majority? I suspect that at least some people would conclude that the Court’s decisions do not fit within Ely’s representation-reinforcing participation-enhancing justification for judicial review. Instead, Congress has enacted rules that seek to enfranchise voters and augment their political equality, while a Supreme Court majority has stepped in to prevent Congress from doing so.[38]


The Court’s common matrix of participation raises complex questions about what kind of participation is the most valuable or the most fundamental in a democracy.[39] The Roberts Court has reframed the activities of large donors as “participation,” a laudable feature of the democratic process that the Court has a duty to protect from governmental regulation. This raises three interrelated problems. First, the Court’s move appropriates a concept—participation—that is typically used to refer to the activities of ordinary citizens. By doing so, the Court has effectively sanitized the disproportionate political influence of the wealthy; after all, such influence is only the by-product of “participation.” Under a prior legal framework, that same “participation” could have been viewed as “corruption.” At the same time, as we saw in Shelby County, the Court did not protect the participation rights of minority voters. Not all kinds of participation receive constitutional protection.

Second, the Court’s invocation of the right to participate brings to the fore the tension between participation rights based on speech and participation rights based on voting. The right to participate, and not the right to vote, now has pride of place as the most basic democratic right. At one time, the basic principles of democracy enjoyed a certain status. Examples of these democratic principles include the following: (1) The right to vote is the fundamental political right; (2) the right to vote, and the universal franchise, instantiates the principle of political equality; and (3) equal political power among citizens is a democratic virtue.[40]

These democratic principles may appear to be so obvious, even definitional of what “democracy” entails, that they do not warrant consideration or comment. As we have seen, however, there is considerable disagreement over the content, meaning and value of these basic principles. To be sure, one reason for the lack of consensus is that the component parts of these principles—the values of equality, participation, fairness, integrity—are themselves deeply contested and contestable.[41] That being said, these democratic principles capture a set of commitments that were once shared across the political spectrum.[42] But whatever overlapping consensus may have existed at one point about the primacy of the right to vote, it is now no longer self-evident that the right to vote will be seen as fundamental—as being distinctively different from, and more important than, other modes of political participation.[43]

Finally, the Court’s new right of participation raises the question of whether the First Amendment is making conceptual inroads on voting rights. Consider, for example, Chief Justice Roberts’s statement at the end of McCutcheon that the Court needed to protect “the First Amendment right of citizens to choose who shall govern them.”[44] This is a remarkable declaration. It goes beyond understanding participation as engaging in public discourse and debate. Indeed, the citizens’ right to choose their representatives is the very definition of the right to vote. The Court’s statement is a strong indication, I think, of how the First Amendment is encroaching on territory that was once reserved for the right to vote.[45]

This incursion is worrying in light of a key tenet in Buckley v. Valeo: “[T]he concept that government may restrict the speech of some elements of our society in order to enhance the relative voice of others is wholly foreign to the First Amendment.”[46] In Citizens United, the Court rejected the antidistortion rationale endorsed in Austin v. Michigan State Chamber of Commerce[47] on the grounds that it was an equalization rationale inconsistent with Buckley.[48] The Court’s hostility to equality arguments was confirmed by its subsequent decision to strike down a law that provided matching funds to publicly financed candidates in part on the grounds that the law impermissibly leveled the playing field in violation of the First Amendment.[49] The difficulty, of course, is that political equality is a central value of democratic government. It is also an animating value of the right to vote. Now that the First Amendment also apparently protects the right of citizens to choose their representatives, political equality is under even greater threat.

Future work in the field must continue to insist that the participation rights of the vast majority of citizens (whether through voting or other means) are more important or fundamental than the participation rights of the wealthy few under the First Amendment. Efforts to protect the right to vote are even more essential after the McCutcheon and Shelby County decisions. Richard Hasen argues, for example, that all voters should be protected from unnecessary burdens on exercising the franchise.[50] He contends that state laws that discriminate against or otherwise burden voters should be subject to greater judicial scrutiny.[51] Daniel Tokaji argues for federal legislation that would expand voter registration.[52] Laws that lead to voter suppression, such as strict voter ID laws, are all the more problematic in a legal climate that only protects the participation rights of wealthy donors.


The Court’s recent election law decisions reveal a democratic divide not only with respect to how democracy and its problems are conceptualized but also in terms of how the basic principles of democracy are defined and understood. In this Essay I have argued that Chief Justice Roberts’s invocation of a new right to participate is a significant development. By subsuming voting and contributing in a common matrix of participation, the Court has demoted the right to vote while simultaneously sanitizing the purchase of influence and access by wealthy donors.

The one (and perhaps only) advantage of this new right of participation is that it forces us to draw the links between the voting cases and the campaign finance cases.[53] It is worth reflecting on the following question: Why do we have a right to vote in the first place? In the past, the Court has stated that the right to vote is “a fundamental political right, because preservative of all rights.”[54] To be preservative, the right to vote has to be meaningful, which in turn, assumes a set of institutions that work together in a certain way. Certainly campaign finance regulation is a part of that picture. Although we typically treat voting and campaign finance as existing in separate analytic silos, we should draw out the implications that each has for the other—and for the right of participation in its various manifestations.


Copyright © 2014 by Yasmin Dawood, Associate Professor of Law and Political Science, University of Toronto; J.D., Columbia Law School, Ph.D., University of Chicago. I would like to thank the participants at the Money in Politics 2030 Conference at the Brennan Center for Justice and the participants at the American Constitution Society’s 2014 Scholars’ Schmooze for thought-provoking discussions. I would also like to thank Guy-Uriel Charles for very helpful feedback on a prior version of this essay, and Johanna Kalb and Deborah Hellman for helpful conversations on the topic of campaign finance. Finally, I would also like to thank Adrienne Lee Benson and the editors of the New York University Law Review for their excellent editorial work. I can be reached at   

     [1]   McCutcheon v. FEC, 134 S. Ct. 1434, 1440–41 (2014).

     [2]   Id.

     [3]   Id. at 1441.

     [4]   Cf. Yick Wo v. Hopkins, 118 U.S. 356, 370 (1886) (describing the right to vote as “a fundamental political right, because preservative of all rights”).

     [5]   McCutcheon, 134 S. Ct. at 1442–43.

     [6]   Id. at 1443.

     [7]   Id. at 1442. 

     [8]   Id. at 1449.

     [9]   Id.

    [10]   Id. at 1448.

    [11]   For a discussion of the meaning of corruption, see Yasmin Dawood, Classifying Corruption, 9 Duke J. Const. L. & Pub. Pol’y 102 (2014).

    [12]   McCutcheon, 134 S. Ct. at 1450.

    [13]   Id. at 1451 (quoting Citizens United v. FEC, 558 U.S. 310, 359 (2010)). For an argument that corruption should be conceived of at the party level, see Michael S. Kang, Party-Based Corruption and McCutcheon v. FEC, 108 Nw. U. L. Rev. Online 240 (2014).

    [14]   McCutcheon, 134 S. Ct. at 1441.

    [15]   Id.

    [16]   Id. at 1481 (Breyer J., dissenting).

    [17]   Id. at 1451 (majority opinion).

    [18]   Id. at 1450.

    [19]   Id. at 1462.

    [20]   See Mark C. Alexander, Money in Political Campaigns and Modern Vote Dilution, 23 L. & Ineq. 239, 245–55 (2005) (describing the concentration of political power in the hands of wealthy individuals).

    [22]   See id. at 31 (arguing that politics will always be influenced by market-based values, but contributing money should not be “one of the central forms of civic engagement”).

    [23]   See Lawrence Lessig, Republic, Lost: How Money Corrupts Congress—and a Plan to Stop It 142–66 (2011) (describing the distortion caused by legislators’ dependence on funders and lobbyists).

    [24]   See Frank J. Sorauf, Money in American Elections (1988); Stephen Ansolabehere, John M. de Figueiredo, & James M. Snyder Jr., Why Is There So Little Money in U.S. Politics?, 17 J. Econ. Persp. 105, 112–17 (2003) (arguing that campaign contributions have little effect on congressional roll call votes).

    [25]   John M. de Figueiredo & Elizabeth Garrett, Paying for Politics, 78 S. Cal. L. Rev. 591, 611 (2005).

    [26]   Larry M. Bartels, Unequal Democracy: The Political Economy of the New Gilded Age 5, 257–67 (2008); Martin Gilens, Affluence and Influence: Economic Inequality and Political Power in America 77–87 (2012); Nicholas O. Stephanopoulos, Aligning Campaign Finance Law, 100 Va. L. Rev. (forthcoming 2015).

    [27]   Guy-Uriel E. Charles, Corruption Temptation, 102 Calif. L. Rev. 25, 33–34 (2014).

    [28]   Spencer Overton, The Participation Interest, 100 Geo. L.J. 1259, 1260–61 (2012).

    [29]   Spencer Overton, The Donor Class: Campaign Finance, Democracy, and Participation, 153 U. Pa. L. Rev. 73, 74–75 (2004).

    [30]   Shelby County v. Holder, 133 S. Ct. 2612, 2618 (2013).

    [31]   Shelby County, 133 S. Ct. at 2627. For a critique of the equal sovereignty principle, see James Blacksher & Lani Guinier, Free at Last: Rejecting Equal Sovereignty and Restoring the Constitutional Right to Vote, 8 Harv. L. & Pol’y Rev. 39, 58–61 (2014).

    [32]   Shelby County, 133 S. Ct. at 2619.

    [33]   Id. at 2631.

    [34]   Id. at 2632 (Ginsburg J., dissenting).

    [35]   Id.

    [36]   Id. at 2650. For an analysis of Justice Ginsburg’s position, see Ellen D. Katz, Justice Ginsburg’s Umbrella, University of Michigan Law School, Public Law and Legal Theory Research Paper Series, Paper No. 389 (2014), available at

    [37]   See John Hart Ely, Democracy and Distrust: A Theory of Judicial Review 102–03 (1980) (discussing the representation-reinforcing approach to judicial review).

    [38]   But see Crawford v. Marion Cnty. Election Bd., 553 U.S. 181 (2008) (upholding Indiana law requiring photo identification in order to vote).

    [39]   For a discussion of the multiple values at play with participation, see Chad Flanders, What Is the Value of Participation?, 66 Okla. L. Rev. 53, 56–62 (2013).

    [40]   Alexander Keyssar has documented the legal revolution with respect to the right to vote in the 1960s and 1970s. A wide range of limits on the right to vote (such as poll taxes, literacy tests, understanding clauses, pauper exclusions, good character provisions, and language barriers) were eliminated by the courts on the basis that these limits violated the principle of political equality. Alexander Keyssar, The Right to Vote: The Contested History of Democracy in the United States 266–84 (2000).

    [41]   For example, political equality in the campaign finance context can be understood in at least seven ways. See Dawood, supra note 11, at 122.

    [42]   See Keyssar, supra note 40, at 263–84 (describing actions by courts and legislators of both parties to secure the right to vote). In 2006, Congress reauthorized the Voting Rights Act with overwhelming bipartisan support. As Justice Ginsburg noted, the 2006 reauthorization vote was 98–0 in the Senate and 390–33 in the House. Shelby County v. Holder, 133 S. Ct. 2612, 2635 (2013) (Ginsburg J., dissenting).

    [43]   For an argument that the right to vote is foundational, see Joshua A. Douglas, The Foundational Importance of Participation: A Response to Professor Flanders, 66 Okla. L. Rev. 81, 83–89 (2013).

    [44]   McCutcheon v. FEC, 134 S. Ct. 1434, 1462 (2014).

    [45]   James Gardner shows how the First Amendment has been invoked for many disputes involving voting, including ballot access cases, restrictions on voting, and primary elections. See James A. Gardner, Partitioning and Rights: The U.S. Supreme Court’s Accidental Jurisprudence of Democratic Process, Buffalo Legal Studies Research Paper Series, Paper No. 2014-013, manuscript at 37–41 (2013), available at

    [46]   Buckley v. Valeo, 424 U.S. 1, 48–49 (1976).

    [47]   494 U.S. 652 (1990), overruled by Citizens United v. FEC, 558 U.S. 310 (2010).

    [48]   Citizens United, 558 U.S. at 349–51 (quoting Buckley, 424 U.S. at 48–49). For a defense of the antidistortion rationale, see Richard L. Hasen, Citizens United and the Orphaned Antidistortion Rationale, 27 Ga. St. U. L. Rev. 989 (2011).

    [49]   Ariz. Free Enter. Club’s Freedom Club PAC v. Bennett, 131 S. Ct. 2806, 2825–26 (2011).

    [50]   Richard L. Hasen, Race or Party?: How Courts Should Think About Republican Efforts to Make It Harder to Vote in North Carolina and Elsewhere, 127 Harv. L. Rev. F. 58, 71–73 (2014).

    [51]   Id.

    [52]   See Daniel P. Tokaji, Responding to Shelby County: A Grand Election Bargain, 8 Harv. L. & Pol’y Rev. 71, 73 (2014) (proposing a “Grand Election Bargain: federal legislation that would expand the opportunities for voter registration (a priority for Democrats) while requiring voter identification (a priority for Republicans) in federal elections”).

    [53]   Mark Alexander suggests applying the voting cases and their principle of political equality to the campaign finance analysis. He argues that money in politics has concentrated power in the hands of the wealthy, leading to a modern form of vote dilution. Alexander, supra note 20, at 241.

    [54]   Yick Wo v. Hopkins, 118 U.S. 356, 370 (1886).


This article appears in the October 2014 Issue: Volume 89, Online Symposium