But Some are More Equal: Race, Exclusion, and Campaign Finance

Proposed campaign finance reforms and critiques of current campaign finance jurisprudence are incomplete because campaign finance reformers overlook social and historical realities related to race. This Article uses race as an analytical factor to develop a more comprehensive understanding of campaign finance. Past state-sanctioned discrimination has contributed to current racial disparities in property. Under the current campaign finance system, these disparities in property shape the racial distribution of political influence no less than poll taxes, literacy tests, or at-large electoral districts. Further, seemingly neutral campaign finance doctrine threatens to lead to future racial disparities in the political distribution of societal resources. The consideration of race also allows for an examination of other critical issues ignored by reformers, such as racially selective enforcement of campaign finance regulations and the adverse impact of some reform provisions on minority political participation

Voting Rights Disclosure

In Beyond the Discrimination Model On Voting, 127 Harvard Law Review 95 (2013), Professor Samuel Issacharoff proposes that Congress turn away from what he considers the outdated and “limited race-driven use” of the Fifteenth Amendment and instead protect all types of voters from partisan manipulation using a “non-civil rights” Elections Clause approach. Specifically, Issacharoff proposes that jurisdictions disclose changes to voting rules for federal elections. This Essay argues that Issacharoff’s approach is incomplete. Contemporary discrimination exists and warrants attention — particularly where fast-growing minority populations threaten the status quo. This discrimination differs from simple partisan manipulation, as the discrimination reduces incentives for cross-racial coalitions and fuels racial division. Further, Issacharoff’s choice to move “beyond” race and abandon the Fifteenth Amendment limits his proposal to federal elections. As a result, his proposal would overlook significant problems — at least 86.4% of all election changes that resulted in VRA section 5 objections since 2000 would not have been disclosed under Issacharoff’s proposal. Unlike the high-profile restrictions he targets (e.g., photo ID triggered by “Republican control of the state legislature”), local voting changes missed by Issacharoff’s proposal are often decisive factors in non-partisan elections, attract little national media attention, and go unchallenged by local voters who lack resources to bring lawsuits. Congress should deter voting discrimination by using the Fifteenth Amendment and the Elections Clause to require disclosure of election changes for federal, state, and local offices, as well as to require more detailed reporting than Issacharoff’s proposal. Finally, disclosure alone is not enough. Congress should also strengthen the VRA Section 3(c) bail-in procedure and streamline voting rights litigation. Selecting between the Fifteenth Amendment and the Elections Clause is a false choice, as we can work both to prevent voting discrimination and to improve access to voting for all American

Political Law

Traditional “election law” or “the law of democracy” concentrated largely on constitutional analysis by judicial actors. That narrow focus, however, distorted scholars’ understanding of the problems confronting democracy and possible solutions. This Foreword proposes that the field should be understood more properly as “political law,” which includes the study of the activities not only of judges but also of policymakers, regulators, and practitioners. The Foreword also examines the concept of “political law community”—a concentration of scholars, judges, policymakers, regulators, and practitioners interested in the subject that can give rise to innovation and creativity. Finally, the Foreword reviews the George Washington University Law School’s Political Law Symposium, which brought together a diverse group in an attempt both to advance political law as a field and to build political law community

Racial Disparities and the Political Function of Property

Race theorists have noted that racial discrimination has shaped the existing distribution of economic resources, and have used this observation to justify reparations, to defend affirmative action, and to call for other legal changes that would improve the socioeconomic status of people of color. This Article takes the theorists\u27 observation further. Property has a political function. Racially discriminatory allocation rules not only impose economic and social harms upon people of color, but also impair the ability of these people to engage in political expression and participation through structures such as the privately financed campaign finance system

Voter Identification

In the wake of closely contested elections, calls for laws that require voters to present photo identification as a condition to cast a ballot have become pervasive. Advocates tend to rely on two rhetorical devices: (1) anecdotes about a couple of elections tainted by voter fraud; and (2) common sense arguments that voters should produce photo identification because the cards are required to board airplanes, buy alcohol, and engage in other activities. This Article explains the analytical shortcomings of anecdote, analogy, and intuition, and applies a cost-benefit approach generally overlooked in election law scholarship. Rather than rushing to impose a photo identification requirement for voting, policymakers should instead examine empirical data to weigh the costs and benefits of such a requirement. Existing data suggests that the number of legitimate voters who would fail to bring photo identification to the polls is several times higher than the number of fraudulent voters, and that a photo identification requirement would produce political outcomes that are less reflective of the electorate as a whole. Policymakers should await better empirical studies before imposing potentially antidemocratic measures. Judges, in turn, should demand statistical data to ensure that voter identification procedures are appropriately tailored to deter fraudulent voters rather than legitimate ones and do not disproportionately exclude protected classes of voters

Matching Political Contributions

Traditional public financing of campaigns is in trouble. Successful candidates have increasingly rejected public financing because it provides inadequate funding and limits candidate spending. November 2012 was the first general election in which presidential candidates from both major parties rejected public financing since the inception of the program. The U.S. Supreme Court recently issued a decision that undermined traditional public financing systems. If existing programs are not revamped soon public financing may be off the public radar for decades, as budget deficits make antiquated public financing programs ripe targets for spending cuts. This Essay proposes a paradigm shift. Public financing should no longer aim to purge private money from politics, but should instead encourage as many citizens as possible to participate in financing politics. Specifically, federal, state, and local lawmakers should adopt a multiple match for political contributions that would dramatically expand participation. Giving six-to-one multiple matching public funds on the first $200 of a contribution, for example, would make a$200 contribution worth $1400 to a candidate. Studies show that multiple matching funds can increase citizen participation sevenfold, and can prompt candidates to collect the bulk of their money from smaller contributors

The Participation Interest

Lack of participation is a primary problem with money in politics. Relatively few people make political contributions—less than one-half of one percent of the population provides the bulk of the money that politicians collect from individual contributors. This Article introduces and details the state’s interest in expanding citizen participation in financing politics. Rather than focus solely on pushing an incomplete anticorruption framework to restrict special interest influence, reformers should also embrace a strategy of giving more people influence. Reformers should accept that money produces speech and that “special interests” in the form of grassroots organizations are a democratic good that can stimulate participation. Increased participation makes government more accountable and responsive, and citizens who give even small financial contributions are more likely to become vested and participate in nonfinancial ways. The Article also presents policies that allow federal, state, and local legislatures to advance the state’s interest in participation. Such policies include tax credits, donor matching funds, exemptions from disclosure for donors of $500 or less, and relaxed restrictions on political action committees (PACs) and parties funded by small donors

But Some are More Equal: Race, Exclusion, and Campaign Finance

Proposed campaign finance reforms and critiques of current campaign finance jurisprudence are incomplete because campaign finance reformers overlook social and historical realities related to race. This Article uses race as an analytical factor to develop a more comprehensive understanding of campaign finance. Past state-sanctioned discrimination has contributed to current racial disparities in property. Under the current campaign finance system, these disparities in property shape the racial distribution of political influence no less than poll taxes, literacy tests, or at-large electoral districts. Further, seemingly neutral campaign finance doctrine threatens to lead to future racial disparities in the political distribution of societal resources. The consideration of race also allows for an examination of other critical issues ignored by reformers, such as racially selective enforcement of campaign finance regulations and the adverse impact of some reform provisions on minority political participation

Racial Disparities and the Political Function of Property

Race theorists have noted that racial discrimination has shaped the existing distribution of economic resources, and have used this observation to justify reparations, to defend affirmative action, and to call for other legal changes that would improve the socioeconomic status of people of color. This Article takes the theorists\u27 observation further. Property has a political function. Racially discriminatory allocation rules not only impose economic and social harms upon people of color, but also impair the ability of these people to engage in political expression and participation through structures such as the privately financed campaign finance system

Mistaken Identity: Unveiling the Property Characteristics of Political Money

This Article argues that money contributed to and spent on political campaigns (\u27political money ) possesses many of the traits that explain judicial respect for regulation of property, and that courts reviewing restrictions on political money should consider doctrines associated with the Fifth and Fourteenth Amendment Property Clauses. As evidenced by the different degrees of respect afforded to regulations of property and speech, judicial treatment of a particular liberty interest can be explained by the presence and particular posturing of distinct functional issues such as distrust, scarcity, distribution, and interference with others\u27 interests. Campaign finance jurisprudence, however, has categorized political money as warranting exacting judicial protection under the First Amendment, and this formalism causes courts to overlook the intersection of two different constitutional doctrines in the political money context. Instead, courts should glean lessons from both property and speech doctrines to determine the appropriate judicial approach in reviewing regulations of political money