Voting, Spending, and the Right to Participate

While the law governing the electoral process has changed dramatically in the past decade, one thing has stayed the same: Courts and commentators continue to view voting in elections and spending on elections through distinct constitutional lenses. On the spending side, First Amendment principles guide judicial analysis, and recent decisions have been strongly deregulatory. On the voting side, courts rely on a makeshift equal protection-oriented framework, and they have tended to be more accepting of regulation. Key voting and spending precedents seldom cite each other.

Similarly, election law scholars typically address voting and spending in isolation. This Article challenges the prevailing, bifurcated approach to voting and spending law. It maintains that the law’s disparate handling of voting and spending is unjustified. Voting and spending are, at bottom, two methods of participating in the electoral process.

Conceiving them as two aspects of a broader right to participate—a right the Supreme Court recently articulated, but did not develop, in McCutcheon v. FEC—offers a principled basis to harmonize voting and spending law and reorient election law discourse.