Participation in Name Only: How Section 2 of the Voting Rights Act Can Present a Meaningful Challenge to Big Money in Politics
By Jonathan Topaz, JD ’18[*]
“No, Jim Crow is not dead. It’s not quite dead. It now focuses its energy in different areas. Instead of literacy tests or poll taxes, the new way to deny adequate representation is to allow us to vote for any candidate we want so long as they’re rich. We have a long way to go.”[1] – Clayton Harris, former President, Howard Law Student Bar Association
I. Introduction
If the fierce battle over money in U.S. politics between libertarians and campaign finance reform advocates is a tennis match, the Supreme Court has forced the latter to play with a wooden racket or broken strings. In the landmark case Buckley v. Valeo, the Court found that campaign expenditures to influence elections amount to First Amendment-protected political speech[2]—meaning the government must prove it has a compelling interest to justify any campaign finance restrictions.[3] Buckley’s decision has been a tremendous boon for the libertarian side, which has pummeled reformers with constitutional free speech arguments to loosen campaign finance regulations. Buckley also rejected a “political equality” justification for campaign finance restrictions, stating instead that the government has a sufficiently important interest to prevent only corruption or the appearance of corruption.[4] The Court has interpreted “corruption” as meaning “quid pro quo corruption”[5]—an incredibly narrow interpretation that seemingly condones anything beyond literal bribery. The Supreme Court has thus effectively neutered reformers looking to impose campaign finance regulations that go beyond the almost non-existent problem of quid pro quo corruption.[6]