Democracy Divided: Campaign Finance Regulation and the Right to Vote

In this Essay, I focus on Chief Justice Roberts’ invocation of a new “right to participate” in McCutcheon. I show how this new right of participation subsumes within it the right to vote and the right of individuals to donate to electoral campaigns. By placing the activities of voting and contributing in a common matrix of participation, the Court has, I claim, demoted the right to vote from its usual position as the most fundamental democratic right. It also has the effect of elevating the right to contribute as normatively equivalent to the right to vote. This Essay also contrasts the Court’s deep concern about the participation rights of donors in McCutcheon with its apparent lack of concern about the participation rights of minority voters in Shelby County. The Court’s deployment of this new “right to participate” has significant implications for both the right to vote and campaign finance regulation.