Contribution limits and voting rights

Is it time to ask the question: do low contribution limits run afoul of the Voting Rights Act?

Or, put another way, why might they not? First, one might say that the Voting Rights Act, passed in 1965 and renewed several times since then, secures rights contingent to voting. Campaigns and other political frou-frou aren’t “voting.” That point might have made sense in the past, but the VRA today has been construed to apply to redistricting and at-large voting, neither of which impede casting one’s ballot, but instead get to whether that ballot can be effective.

One might then say that the VRA was designed to thwart abuses in certain southern jurisdictions. But that would be Section 5 of the Act. Section 2 applies everywhere.

One might then object because contribution limits are race-neutral. They don’t classify by race, and they aren’t imposed with the intent to impede minority political activity. Again, Congress clearly intended the Act to apply without anyone having to prove discriminatory purpose, and even amended it when the Court interpreted the Act otherwise.

But minority voters are, frequently, poorer, and do not make contributions in proportion to their presence in the population. So, you would ask, how could a low limit impose a burden?  Because contribution limits don’t just burden donors. They burden candidates. That burden is magnified when one considers the effect on minority neighborhoods in urban areas, where media, labor, and rental costs are higher.

Finally, one would argue, perhaps, that contribution limits are always reviewed under some mysterious reduced standard of scrutiny. Which is true, unless you take Justice Breyer’s plurality opinion in Randall v. Sorrell seriously. He applies a multi-factor test to determine when the Court should not defer to legislative judgments.

It seems to me there is a point of convergence potentially between the Breyer “danger signs” that trigger greater scrutiny of contribution limits, and the way limits impede political activity disproportionally among urban-dwelling minority voters. In Randall, the Court concluded that Vermont’s limits prevented candidates from mounting effective campaigns. The VRA cases have examined whether minority voters can cast effective votes. It doesn’t seem too wide a gap between these two principles, as both are concerned with political effectiveness. 

Contribution limits are being challenged in federal court in Michigan and Kentucky, and either of these states would seem to possess the characteristics necessary to see how this theory would play out.

The Center for Competitive Politics is now the Institute for Free Speech.