John Bonifaz: Campaign Finance and the Equal Protection Clause

By John Bonifaz, Constitutional Attorney and the Co-Founder and President of Free Speech For People

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).