Portside

The Constitution, the Supreme Court reassured us in the recent McCutcheon decision, protects the “basic” democratic right of every American “to participate in electing our political leaders.” That should offer solace at a time when self-interested politicians in far too many states are passing laws that could keep millions of eligible citizens from voting.

But should we be reassured? Recent Supreme Court decisions give us pause. While the Supreme Court talks about the fundamental right to participate, in the last several years it has only been willing to seriously protect that right for a few of us — a very few.

The way most of us “participate in electing our political leaders” is by voting. A tiny minority also “participates” by contributing more than $123,200 to federal political campaigns. In 2012, just 591 donors reached that limit on giving to federal candidates. For some perspective, that represents a little more than 0.000002 percent of the U.S. voting age population.

The Supreme Court has made clear that it will judge attempts to restrict the monetary kind of “participation” very strictly. By contrast, restrictions on voting — which a majority of voting-age citizens do — have been judged far more leniently. In other words, in the Roberts Court era, it is much easier to get away with curbing participation by the many than participation by the select few.

To see how, look at the Supreme Court’s two most recent decisions on voting and money and politics. The Supreme Court twice ruled against voters, gutting the heart of the 1965 Voting Rights Act in the Shelby County decision and upholding a strict photo ID requirement for Indiana voters in the Crawford case. On money in politics, the Court twice thwarted campaign finance laws, striking down limits on corporate election spending in Citizens United, and blocking overall federal election contribution caps in McCutcheon. Indeed, since 2006, the Supreme Court has struck down campaign finance regulations in seven cases in a row.

In these cases, the Court has made it clear that it will use very different standards for evaluating restrictions on the fundamental “right to participate in electing political leaders” when voting access or the ability to spend money in campaigns are at stake:

• In the campaign finance context, for example, the Court has subjected a variety of common-sense measures to strict or otherwise “rigorous” constitutional scrutiny, regardless of how much they actually limit an individual’s ability to express her views or support for a candidate and regardless of how many other avenues of expression are available to her. Citizens who seek to invalidate laws restricting voting, by contrast, “bear a heavy burden of persuasion” under the U.S. Constitution, according to the Court. Barriers to voting typically do not generate serious judicial scrutiny unless they are “severe,” and the Court set a high bar for when barriers will be considered severe. For example, the Court in the Crawford case did not credit the burdens on elderly Indiana voters without state-issued photo IDs or birth certificates as meriting serious constitutional concern because the record did not indicate “how difficult it would be for them to obtain a birth certificate.”

• On money in politics, the Court has swept aside laws whose roots go back more than a century and repeatedly refused to defer to Congress’s judgments — even on the critical factual and political questions of what kinds of conduct cause corruption or the appearance of corruption and how different regulations will affect candidate behavior. The Court has relied instead on hypotheticals, speculation, and its own “common sense” to dismiss Congress’s goals in regulating political spending. In the voting context, by contrast, the Court has heavily deferred to legislative judgments to justify restrictions, finding in Crawford that the state’s interest in preventing voter fraud was sufficient to justify voting restrictions even though the record contained “no evidence of any such fraud actually occurring in Indiana at any time in its history.”

• The Court has invalidated campaign finance regulations if the Court was able come up with an alternative regulation that it viewed as more “closely drawn” — even if that alternative had never been tested and may not be viable. In voting, however, the existence of multiple less restrictive means of preventing voter fraud has not kept the Court from upholding new restrictions supposedly aimed at that same goal.

In McCutcheon, the Court noted, “[c]onstituents have the right to support candidates who share their views and concerns. Representatives are not to follow constituent orders, but can be expected to be cognizant of and responsive to those concerns. Such responsiveness is the key to the very concept of self-governance through elected officials.”

But who are a legislator’s constituents? According to most of us — and to the Oxford American Dictionary — it is “members” of “a body of voters who elect a representative to a legislative body.” But the Supreme Court is not referring to voters, but to donors. According to the Supreme Court, Shaun McCutcheon is a constituent of every member of Congress, because he can afford to buy access and influence from all of them. Most of the voters in his Alabama congressional district cannot. They exercise their influence over just one congressman and senator as most Americans do — by voting. As former Supreme Court Justice John Paul Stevens has put it, under the jurisprudence of the current Court, “[t]he voter is less important than the man who provides money to the candidate.”

***

Some commentators have suggested the Court’s embrace of a basic right “to participate in the electoral process” in McCutcheon may presage a greater appreciation of, and protection for, the rights of voters. Recent lower court opinions offer hope.

Just yesterday, a federal district court in Wisconsin struck down a voter ID law not that dissimilar to the one upheld by the Supreme Court in Crawford. The district court noted that the state failed to establish a legitimate interest in imposing this new burden on voters, and that plaintiffs had shown there was, in fact, a real burden: “approximately 300,000 registered voters” lack the specific kind of photo ID the state requires, and those voters are disproportionately black, Latino, and poor. The court further found that for a substantial number of those voters (no doubt more than 591) obtaining the required ID could be so expensive and difficult that they would be deterred from voting.

Surely, this was the correct decision. As an earlier Supreme Court noted more than a century ago, the right to vote is “a fundamental political right because preservative of all rights.” Surely, if we’re concerned about laws making it more difficult for a few hundred people to make six-figure campaign donations, we should be at least as skeptical about laws limiting the fundamental right to vote for 300,000 Americans.

Time (and a series of appeals) will tell whether the current Court agrees.