RESPONSE: Political Participation: A Hybrid Sphere

October
2014
Deborah Hellman

In a striking passage from Chief Justice Roberts’s opinion in McCutcheon v. FEC[1] highlighted by Professor Dawood in her contribution to this symposium,[2] the Chief Justice defines political participation as including five components: running for office, voting, urging others to vote, volunteering on a campaign, and contributing to a candidate’s campaign.[3] For Professor Dawood, this passage is significant because the Chief Justice demotes voting from its status as a preeminent right, preservative of other rights, to merely one of several ways a person can participate in politics. This is important, as she argues. But the list is also significant in another way. When the Chief Justice describes contributing to a campaign as a type of political participation along with running for office, voting, urging others to vote and volunteering, he implicitly asserts that these modes of participation are similar to one another. But contributing to a campaign is importantly different from the others modes of political participation. People are roughly equal in their ability to exercise each of the other modes of participation while they are dramatically and manifestly unequal in their ability to contribute money to candidates or campaigns.

Each person has one and only one vote. In fact, the Court has rigorously policed the size of districts at the state and federal level to insure that the weight each person’s vote carries is equal.[4] In the domain of voting, the norm of equality is strenuously enforced. Running for office, urging others to vote and volunteering are also governed by a rough equality, albeit one imposed more by practical than normative constraints. Any given person would be hard pressed to run for more than one office at a time. And while some people have more time and persuasive power to volunteer or urge others to vote, respectively, still the range of the differences between how much or effectively people can participate in politics by volunteering or urging others to vote is limited. Not so for participating by financially contributing to candidates. As Shaun McCutcheon himself so dramatically illustrates, one person’s ability to participate can dwarf another’s, and the range between the least and most able to engage in this form of participation is so wide that truly the sky’s the limit.

Why is it significant that the Chief Justice links modes of participation to which people have roughly equal access with one mode to which they do not? For some time now, critics of the current Court’s campaign finance jurisprudence have grounded that critique on the premise that a person should not be able to simply translate financial success into electoral success. This view has its roots in the idea that different parts of our society are governed by different norms.[5] Within each, different principles apply: Market goods are allocated on the basis of willingness to pay, but other goods are not. For example, judicial decisions, places at universities, and scarce organs are all allocated according to nonmarket principles: legal rights, academic merit, and medical need, respectively. But what of the sphere of electoral politics? While defenders of campaign finance regulation have insisted that electoral politics represents a sphere distinct from the market, the rationale underpinning the critiques of such laws has been equivocal on this point.

Indeed, a tension lies at the heart of the Court’s current campaign finance jurisprudence. Recent cases have narrowed the definition of corruption sufficient to justify restrictions on giving and spending money in connection with elections, but the Court still retains the idea that a direct exchange of money for official acts constitutes corruption. In so doing, the Court endorses the view that the decisions of politicians should be governed by norms other than market norms. The politician should decide as she thinks best or as her constituents would want, but not by auctioning off her vote to the highest bidder. The exchange of votes for money is blocked (just as is the sale of organs).[6] At the same time, the Court suggests that contributions are a way to assess voters’ support for candidates and their positions. In so doing, the Court suggests that the spheres are actually interrelated. If a legislator decides to vote for a bill because she believes she will attract contributions going forward or abstains from voting a particular way so as not to lose an important source of funds, this is not corruption, in the Court’s view, but instead “responsiveness,” a quintessentially democratic virtue.[7]

The prohibition on quid pro quo exchanges of money for votes is grounded in a view that politics is a sphere distinct from the market. The suggestion that contributions function as a measure of political support is grounded in the view that the “marketplace of ideas” is not merely a metaphor but an apt description of the way things work—and should work—in the political sphere. The candidates and positions that attract the most money should win elections and determine policy. These two visions of the relationship between electoral politics and the market are in conflict.

Because the Court’s conception of corruption has only recently narrowed,[8] how this tension will be worked out, resolved, and explained is not yet clear. The passage from the Chief Justice’s McCutcheon opinion that we have been discussing is important because it suggests that the Court is moving closer and closer to the view that the domains of politics and of the market need not be kept apart. The Chief Justice describes a hybrid sphere of “political participation”—part the sphere of electoral politics, in which voting is the metric and the norm of equality applies, part the sphere of the market, in which money is the metric and willingness to pay/contribute governs.

It is important to recognize the creation and articulation of the hybrid sphere of political participation—partly governed by the norms of electoral politics and partly by the norms of the market. One of the central issues facing any democracy is the scope of the market in society. This includes the familiar questions of how much or how little regulation we should have and more fundamental questions regarding which things are for sale and which are not. When we stopped allowing military draftees to pay a substitute to serve in their stead,[9] we made military service a civic obligation rather than market-governed employment. While the socio-economic status of our current military challenges the sincerity of this commitment,[10] the decision to remove draft-based service from market norms was nevertheless significant. To be sure, it is nearly impossible to insulate a domain completely from market-based values; nevertheless, the lines we draw are important. Politics will never be free of the influence of money, but we should not embrace contributing money as one of the central forms of civic engagement.



Copyright © 2014 by Deborah Hellman, D. Lurton Massie Professor of Law, University of Virginia.  

     [1]   134 S. Ct. 1434 (2014).

     [3]   McCutcheon, 134 S. Ct., at 1440–41.

     [4]   See Reynolds v. Sims, 377 U.S. 533, 568 (1964) (holding that state legislative districts must be apportioned by population); Wesberry v. Sanders, 376 U.S. 1, 7–8 (1964) (holding that a state’s congressional districts must have roughly equal populations).

     [5]   See generally Michael Walzer, Spheres of Justice: A Defense of Pluralism and Equality 3–10 (1983) (arguing that the social meaning of different goods—e.g., health care, education, the vote, commercial goods, etc.—generates different principles of distribution for these goods).

     [6]   The term “blocked exchange” comes from Walzer, id. at 97, 100–03.

     [7]   In Citizens United v. FEC, Justice Kennedy, writing for the Court, contends that “[i]t is well understood that a substantial and legitimate reason, if not the only reason, to cast a vote for, or to make a contribution to, one candidate over another is that the candidate will respond by producing those political outcomes the supporter favors. Democracy is premised on responsiveness.” 558 U.S. 310, 359 (2010) (quoting McConnell v. FEC, 540 U.S. 93, 297 (2003) (Kennedy, J., concurring in the judgment in part and dissenting in part)).

     [8]   See Citizens United, 558 U.S. at 357–60 (holding that quid pro quo corruption or the appearance of quid pro quo corruption are the only sufficiently compelling governmental interests to justify restrictions on giving and spending money in connection with elections).

     [9]   The controversial practice of paying a substitute to avoid conscription (“commutation”) ended in July 1864. Eugene C. Murdock, Was it a “Poor Man’s Fight”?, 10 Civ. War Hist. 241, 241 (1964).

    [10]   See Amy Lutz, Who Joins the Military? A Look at Race, Class, and Immigration Status, 36 J. Pol. & Mil. Soc. 167, 178 (2008) (“[T]here is an association between family income and military service: as family income increases, the likelihood of ever having served in the military decreases.”).

 

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