The right to vote in elections and the right to spend in elections are both historically
revered rights that function as critical elements of American democracy.
These rights have earned their salience because they are two of the most common
and accessible mechanisms by which Americans can participate in the democratic
process. In different ways, each right enables citizens to express their views of
their elected representatives and to support causes they identify with,
ultimately ensuring that government remains responsive to the needs of the
electorate. Due to their vital roles within the democratic process, condoning
the restriction of one of these rights while overlooking the regulation of the
other undermines democratic principles.
Despite their shared value to democratic participation, the Supreme Court analyzes the
right to vote and the right to spend through distinct doctrinal lenses. The
Court’s differential analysis manifests in significant regulation of voting but
a more laissez-faire approach to spending. As a result, voting and spending
rarely reference each other in jurisprudence and are infrequently compared.
This has led to limited scholarship contrasting the Supreme Court’s legal
analysis of each right and even less of an examination into how the two rights relate
at a policy level. Such a comparison is instructive when evaluating the
transparency and integrity of the American electoral process. Indeed, if two
core democratic rights are treated differently by both courts and legislatures,
then the rationale behind such divergent treatment should be scrutinized. This
Note explores how voting rights and spending rights interact at both the
judicial and state policy levels. This Note’s central argument is that voting
and spending are closely related activities that are jointly paramount to the
functioning of American democracy and, as a result, the inconsistent regulation
of these two issues in jurisprudence and state-level policy is unjustified and
detrimental to the democratic process.
. For the purpose of this Note, I am
borrowing Professor Robert Yablon’s concept of the “right to spend,” which
encompasses both political contributions and political expenditures. As both Professor
Yablon and this Note point out, the Supreme Court has assessed regulations
pertaining to contributions and expenditures differently, and when it is
necessary to distinguish the Court’s legal framework around these two issues,
this Note will do so. See Robert Yablon, Voting, Spending, and the
Right to Participate, 111 Nw. U. L.
Rev. 655, 658 n.9 (2017).
. The first federal campaign finance law was
passed in 1876 when the Naval Appropriations Bill became the first enacted law regulating
how citizens could contribute to elected representatives. See History
of Campaign Finance Regulation, Ballotpedia,
_finance_regulation [https://perma.cc/FAA3-VCCG]. Voting rights date back even
further to the country’s founding, but until the Fourteenth Amendment was adopted
in 1868, such rights were primarily controlled by state legislatures.
* Executive Senior Editor, Southern
California Law Review, Volume 95; J.D. Candidate 2022, University of
Southern California Gould School of Law; B.A. International Relations 2016,
Boston University. I would like to thank my family for their invaluable
support. I would also like to thank Professor Abby Wood for her guidance while
drafting this Note. Finally, thank you to the Southern California Law Review
editors for their exceptional work.