Losing Our Vote in the Wealth Primary

A Legal Challenge in New York        John Bonifaz

        There are moments in our nation's history when a tradition that we once thought constitutional becomes constitutional no more. The history of the right to vote in this country includes, in fact, a series of such moments. Once held only by white male property owners, the right to vote has been continuously expanded as disenfranchised peoples have organized and struggled for an America that lives up to its legal and moral promise of democracy. Over time, the nation has seen the elimination of numerous barriers to voting rights -- from property, race, gender and age qualifications to exclusionary white primaries, poll taxes, high candidate filing fees and vote dilution schemes.
        Today, we must face up to the newest voting rights barrier: the "wealth primary." The wealth primary is that exclusionary process, leading up to every party primary and every general election, in which those with money or access to money choose by means of their campaign contributions the candidates who almost invariably go on to govern. Those candidates who do not raise enough money -- that is, those who lose the wealth primary -- almost always do not win office.
        The rest of us, the vast majority of American people, are shut out of this process. Because we have, ultimately, little say in the outcome of elections, our right to vote is debased and undermined. Our system of financing electoral campaigns is constitutional no more.

The wealth primary is that exclusionary process, leading up to every party primary and every general election, in which those with money or access to money choose by means of their campaign contributions the candidates who almost invariably go on to govern.

A Wealth Primary Court Challenge

        In July 1994, a former congressional candidate and 13 people who had voted for him filed the first constitutional challenge to this campaign finance system for congressional elections based on the right to vote and the right to run for office. Sal Albanese, a five-term member of the New York City Council, ran in 1992 as the Democratic nominee in the 13th Congressional District of New York, covering Staten Island and part of Brooklyn. He faced incumbent Rep. Susan Molinari, who raised and spent more money by a factor of nearly two to one. Albanese, who lacked both personal wealth and access to wealthy interests, lost the election.
        Albanese and the group of voters filed suit in U.S. District Court against the Federal Election Commission, the agency which monitors and oversees the wealth primary, and against Molinari and her campaign committee. The case is being litigated by the National Voting Rights Institute, a Boston-based litigation group formed this year to challenge the campaign finance system.
        The plaintiffs have asked the District Court to intervene in the wealth primary to protect their constitutional rights -- and, thus, to follow the federal courts' long tradition of intervention where constitutional rights are not being protected by the other branches of government.

"Part of the Machinery"

        In 1953, the Supreme Court decided the last of what have become known as the "white primary" cases. But Terry v. Adams (1953) actually did not involve a racially exclusionary primary. By the time Terry came around, the Supreme Court had already struck down all-white Democratic Party primary elections that were authorized by statute (Nixon v. Herndon, 1927), by act of the state party's executive committee (Nixon v. Condon, 1932) and by resolution of the state party membership (Smith v. Allwright, 1944)). Terry involved the pre-primary candidate nominating process of an all-white political organization in Texas, home of the earlier cases.
        The Jaybird Democratic Association, a large private political club open only to white Texas voters, had for years nominated candidates to run in the Democratic Party primary. For years, those who won the "Jaybird primary" invariably went on to win the Democratic primary and the general election.
        In a decision of enormous import to the Albanese challenge, the Supreme Court ruled in Terry that the Jaybird Democratic Association's exclusionary process had become "part of the machinery for choosing officials" and, therefore, required constitutional scrutiny. The Court then struck down the Jaybird primary, finding that it unconstitutionally excluded African American voters on the basis of their race from "an integral part" of "the elective process that determines who shall rule and govern."
        Like that white primary, the wealth primary today is "part of the machinery" for getting elected to federal office. It is, like its predecessor, both exclusionary and decisive. Candidates and voters who lack wealth and access to wealth are effectively excluded from the process. And the candidate who, by raising the most money, wins the wealth primary almost invariably wins the election.
        That is the American way, some might say. If you have the money or can raise the money, you can spend it on your election campaign. The Supreme Court said as much in its highly controversial 1976 decision in Buckley v. Valeo when it struck down, on First Amendment grounds, mandatory congres-sional limits on overall congressional campaign expenditures, on candidates' expenditure of their personal wealth and on "independent" expenditures.
        But the constitutional question posed by the wealth primary is not about the First Amendment rights of the well-financed candidates and wealthy contributors. It is about the equal-protection rights of all candidates and voters who are left behind in the fundraising process because of their lack of money and access to money. No federal court in the nation has ever ruled on this critical question.

Wealth as a Barrier

        Nearly thirty years ago, in the midst of the civil rights movement, the Supreme Court stated that wealth cannot serve as a barrier to the right to vote. In Harper v. Virginia State Board of Elections (1966), a decision that came two years after the Twenty-Fourth Amendment had banned poll taxes in federal elections, the Court struck down a poll tax of $1.50 in Virginia state elections. The Court found that "a State violates the Equal Protection Clause of the Fourteenth Amendment whenever it makes the affluence of the voter or payment of any fee an electoral standard. Voter qualifications have no relation to wealth."
        Six years later in Bullock v. Carter (1972), the Court again faced the issue of wealth as a barrier in the electoral process and again stated that such a barrier cannot stand. This time, the question concerned a system of high filing fees that the state of Texas required candidates to pay in order to appear on the primary ballot. The fees ranged from $150 to $8900.
        The Court invalidated the system on equal-protection grounds. It found that, with the high filing fees, "potential office seekers lacking both personal wealth and affluent backers are in every practical sense precluded from seeking the nomination of their chosen party, no matter how qualified they might be and no matter how enthusiastic their popular support."
        The "exclusionary character" of the system also violated the constitutional rights of non-affluent voters. "We would ignore reality," the Court stated, "were we not to find that this system falls with unequal weight on voters, as well as candidates, according to their economic status."
        Our current system of financing electoral campaigns now stands where the poll tax and the high candidate filing fee systems once stood. The facts -- according to the Washington, D.C.-based Center for Responsive Politics, a leading source in the country on the influence of private money in federal elections -- speak for themselves:
        • In 1992, the winner of a seat in the United States House of Representatives spent, on average, $543,000; the loser, $201,000. The winner of a seat in the Senate spent, on average, $3.9 million; the loser, $2.0 million.
        • Eighty-nine percent of all House winners and 86% of all Senate winners outspent their opponents in 1992.
        • On the House side, the champion spender was Republican Michael Huffington, a California millionaire who spent $5.4 million to acquire his congressional seat. His Democratic opponent, Gloria Ochoa, spent $663,027.
        • The most expensive race in 1992 on the Senate side was in New York, where Republican incumbent Alfonse D'Amato spent $9.2 million to defeat his Democratic opponent, New York Attorney General Robert Abrams. Abrams spent $6.4 million.
        • An analysis by the government-reform group Common Cause reveals that in 1992, four out of five House incumbents faced either no challenger at all or a challenger with so little money -- less than 50% of that available to the incumbent -- as to be deemed not a serious competitor.
        • According to a study by the Capitol Hill newspaper Roll Call, fewer than 900,000 Americans, out of a population of 250 million, gave direct individual contributions of $200 or more in 1992. Beverly Hills, which has only 31,000 residents, produced 6,452 such contributions -- more than double the number that came from the entire city of San Diego, which has a population of 1.1 million.
        • At least 28 out of 100 United States Senators are millionaires, compared to less than one-half of one percent of the American public. This means that millionaires are over-represented in the Senate by a factor of more than 5,000 percent.
        • Not a single U.S. Senator was in the class of people living below the U.S. Government-established poverty line before winning election, a class which consists of at least 12% of American society. If the poor were over-represented in the Senate to the same extent as millionaires, the entire body would be made up of poor people.
        • Of all the money contributed to congressional campaigns in 1992, 81% came in amounts of $200 or more. Of that, individuals contributed $233 million, or 35% of all congressional campaign money. Political action committees contributed $188 million, or 29% of all campaign money. The remaining portion of the 81% total came largely from the personal wealth of candidates, through loans and contributions to their campaigns.
        • Wealthy interests dominate the campaign fundraising process. The vast majority of PAC money in 1992 came from corporate America. Business PACs gave $126.8 million to congressional campaigns, outspending labor PACs by a margin of three to one. Labor was also outspent by individuals concentrated in corporate America. When PAC and large individual contributions are taken together, business interests outspent labor interests by a ratio of 6.8 to 1 ($295.4 million to $43.3 million).

Seeking Needed Relief

        The recent demise in the U.S. Congress of even the most incremental "reform" effort on campaign finance demonstrates that voters cannot look to their federal legislators for protection of their rights in this area. Members of Congress, after all, are chief beneficiaries of the present-day system. Relief from the courts is now necessary.
        In Albanese v. FEC, CV-94-3299, Councilman Albanese and the group of New York voters are asking the district court to intervene. They seek a court declaration invalidating as unconstitutional the Federal Election Campaign Act of 1971 (as amended), insofar as it allows for the solicitation and use of private money in federal elections. They also seek a court declaration invalidating as unconstitutional the congressional franking privilege and other subsidies to incumbent members of Congress, so long as such subsidies are not shared equally by all congressional candidates.
        When Albanese ran for Congress in 1992, he raised $267,000, an amount close to the norm for losing congressional candidates. His opponent, Rep. Molinari, raised $524,000, an amount close to the norm for winning congressional candidates. Albanese, who lacked both personal wealth and access to wealthy interests, thus lost the wealth primary. The campaign finance system blocked his meaningful and equal participation as a candidate in the electoral process.
        The voters who joined Albanese in this challenge represent a cross-section of the 13th Congressional District. The group includes Democrats, Republicans and Independents. Some voted for Bill Clinton in 1992, others for George Bush and others for Ross Perot. But all of them lack the wealth and access to wealth needed to participate in the decisive money-raising process. Their right to vote, as guaranteed by the equal-protection clause, is thus debased and undermined.
        A declaratory judgment in this case that the wealth primary, as authorized and sanctioned by federal law, is unconstitutional will help lead to the creation of an alternative system which protects the constitutional rights of all candidates and voters. Just as the courts thirty years ago helped change the makeup of congressional and legislative districts so that they comported with the principle of "one person, one vote" (Reynolds v. Sims, 1964), so the courts today can help break down the newest voting rights barrier.
        But, some might ask, if the influence of private money in elections cannot be tolerated, then how are candidates to run? Where does the money come from?

"Distribute the Influence"

        In Bullock v. Carter, the State of Texas argued, among other things, that its system of high candidate filing fees was necessary in order to finance "the cost of conducting the primary elections." The State argued that, if the fees were struck down, "the voters, as taxpayers, will ultimately be burdened with the expense of the primaries."
        But Chief Justice Warren Burger, writing for the Court, stated that the primary is part of the democratic process and that "it seems appropriate that a primary system designed to give the voters some influence at the nominating stage should spread the cost among all the voters in an attempt to distribute the influence without regard to wealth." Given the many functions that government pays for, Burger wrote, "it is difficult to single out any of a higher order than the conduct of elections at all levels to bring forth those persons desired by their fellow citizens to govern."

        Update on Albanese v. FEC

        In April 1995, Federal Judge I. Leo Glasser dismissed the plaintiffs' case primarily on the grounds of standing. The plaintiffs are appealing his ruling to the U.S. Court of Appeals for the Second Circuit in New York.
        As with all candidates and voters who have previously challenged electoral systems which they allege undermine and debase their constitutional rights, Albanese and the voters say they have the right to their day in court. Oral argument on the appeal is scheduled for mid-October 1995. As the Albanese appeal moves forward, the Institute is preparing for new litigation in other jurisdictions challenging the constitutionality of the wealth primary system.
        • John Bonifaz, Natl. Voting Rights Institute

        We can take guidance from the Court's ruling in Bullock. If the primary is part of the democratic process, so too is the electoral campaign, including all the fundraising, that leads up to the primary and the general election. We ought, then, to have democratically-financed elections, elections financed not by a wealthy elite but by all the people.
        Such a system, in which candidates received equal amounts of public financing for their campaigns, would end the wealth primary and open up the candidate selection process to all voters. The cost, at five to ten dollars per taxpayer, would be far less than the billions of dollars in legislative favors to campaign contributors -- in the form of corporate subsidies and payoffs -- for which taxpayers now foot the bill. Such a proposal for democraticallyfinanced elections, devised by the Working Group on Electoral Democracy, a grassroots organization based in Deerfield, Massachusetts, has already been introduced in five state legislatures.
        Neither the state legislatures nor Congress, however, will protect the constitutional rights of all non-affluent voters and candidates unless forced to do so. Councilman Albanese and the 13 voters have sought relief from the only place possible -- the courts. Others will, no doubt, join them in new cases seeking judicial protection of their basic constitutional voting rights.
        In the face of this challenge to the wealth primary, the courts may choose to preserve an
illogical and anti-democratic tradition. But they may decide to examine the sad reality of American
politics today and to carry forward the constitutional promise of democracy. It is possible to remake American politics. If we truly believe in the vision of popular democracy, we must try.

        A graduate of Harvard Law School and former staff attorney for the Center for Responsive Politics, John Bonifaz heads the National Voting Rights Institute. For more information, contact the Institute by: mail (1130 Massachusetts Avenue, Third Floor, Cambridge, MA 02138); phone (617-441-8200); or email ([email protected]).

Clay Bennett

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Chapter Six