FINANCIAL INCLUSION IN POLITICS

ABHAY P. ANEJA,* JACOB M. GRUMBACH† & ABBY K. WOOD‡

Our deregulated campaign finance system has a race problem. In this Article, we
apply innovations in statistical methods to the universe of campaign contributions
for federal elections and analyze the racial distribution of money in American
politics between 1980 and 2012. We find that white people are extremely over-
represented among donors. This racial gap in campaign contributions is signifi-
cantly greater than the gap between white and nonwhite voter participation and
white and nonwhite officer holders. It is also relatively constant across time and
elected offices.

This result is an important missing piece in the conversation about equity in polit-
ical participation. We argue that the courts and Congress should take steps to
address the racial gaps in campaign finance participation. The participation and
representation problems that flow from racial inequality in deregulated campaign
finance could inform claims under the Voting Rights Act (VRA), and politico-
financial inequalities certainly bear on the normative problems that the statute
intends to address. But the most politically viable way to address the campaign
finance racial gap lies in adoption of public financing for political campaigns,
which offer the promise of increasing the racial representation of campaign contri-
butions. When racial representation in contributions is improved, improved
equality in the distribution of resources and power in electoral and political systems
should follow.

INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 568
I. RACIAL INEQUALITY IN POLITICAL PARTICIPATION &
REPRESENTATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 574
A. Historical Background: Disparities in Economic
Status and Political Inequality . . . . . . . . . . . . . . . . . . . . . . . 575
B. Theory: Why Contribution Patterns Affect Minority
Political Selection and the Quality of
Representation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 581
C. The Campaign Finance Participation Gap . . . . . . . . . . . 586

* Assistant Professor of Law & Fellow at the Center for Law, Economics, and Politics
at the University of California, Berkeley.
† Assistant Professor of Political Science at the University of Washington.
‡ Professor of Law, Political Science and Public Policy at the University of Southern
California, Board Member. We are particularly grateful to Nate Persily for generous feed-
back at the early stages of this project, and to Nick Stephanopoulos for detailed comments
on the draft. We are also grateful to Guy-Uriel Charles, Yasmin Dawood, Luis Fuentes-
Rohwer, Josh Sellers, Franita Tolson, Dhammika Dharampala, Bertrall Ross, and partici-
pants of the Culp Colloquium at Duke and Stanford Law School, and audiences at
University of Toronto for comments. All errors are our own. Copyright  2022 by Abhay
P. Aneja, Jacob M. Grumbach, and Abby K. Wood.

566
May 2022] FINANCIAL INCLUSION IN POLITICS 567

1. An Overview of the “Racial Contributions Gap”:

Static and Dynamic Evidence . . . . . . . . . . . . . . . . . . . 586
2. The Racial Composition of Money Across
Election Types . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 590
3. Underrepresentation in Contributions to Outside
Groups . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 591
D. The Participation Gap Worsens Minority
Representation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 592
1. Campaign Finance Disparities and Political
Selection . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 592
2. Campaign Finance Disparities and Substantive
Representation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 595
II. THE PLUTOCRATIC IMPLICATIONS OF CAMPAIGN
FINANCE JURISPRUDENCE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 599
A. Narrow “Compelling” Government Interests . . . . . . . . 599
B. Taking Alignment and Participation Seriously . . . . . . . 603
III. CAMPAIGN FINANCE INEQUALITIES THROUGH THE
LENS OF VOTING RIGHTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 605
A. Racial Inequality in Campaign Financing and the
Constitution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 606
1. Right to Vote Harms . . . . . . . . . . . . . . . . . . . . . . . . . . . . 606
2. The Problem of State Action . . . . . . . . . . . . . . . . . . . . 609
B. Deregulated Campaign Finance and the Voting
Rights Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 611
1. The Equal Participation Goal . . . . . . . . . . . . . . . . . . . 612
2. The Fair and Effective Representation Goal . . . . . 615
3. A Modest Proposal: Campaign Finance
Disparities Under the “Totality of
Circumstances” Test . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 617
a. Factor Four: Deregulated Campaign Finance
Schemes Exclude Minorities from the
Candidate Slating Process . . . . . . . . . . . . . . . . . . 619
b. Factor Nine: Deregulated Campaign Finance
Schemes Reduce Responsiveness on the
Part of Elected Officials to the
Particularized Needs of the Members of the
Minority Group . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 621
IV. THE ROLE OF PUBLIC FINANCING IN ADDRESSING
THESE PROBLEMS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 622
A. Public Financing Can Improve Financial Inclusion
in Politics . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 623
B. Electoral Jurisdictions Should Adopt Public
Financing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 627
568 NEW YORK UNIVERSITY LAW REVIEW [Vol. 97:566

C. Public Financing as a Judicial Remedy . . . . . . . . . . . . . . 629

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 629

INTRODUCTION
It is time for the courts to take seriously the connection between
racial inequality and campaign finance in America.
In the United States, political contributions are largely unregu-
lated. Indeed, the Supreme Court has often struck down campaign
finance regulations on the theory that political spending is political
speech, and restrictions on such spending violate the First
Amendment.1 Much scholarly attention has been paid to one result of
this deregulated environment: Rich people are able to spend mas-
sively in campaigns.2 But as our Article demonstrates, there is another
implication that is equally troubling: Non-Latino whites are severely
overrepresented in political contributions.
We should not be surprised by this result. The legacies of slavery
and racial exclusion have generated stark racial inequalities in wealth.
By striking down laws limiting political contributions and spending,
the Court has elevated the speech of the wealthiest people in our
society—almost all of whom are white—above the speech of poorer
people in our society—many of whom are Black and Latino. Because
the racial identities of campaign donors have been largely unobserv-
able to scholars until now, however, the racial wealth gap and its
implications for campaign finance jurisprudence have not played a
large role in our scholarship.3

1See Buckley v. Valeo, 424 U.S. 1, 14–23 (1976) (per curiam).

2E.g., Jamin Raskin & John Bonifaz, Equal Protection and the Wealth Primary, 11
YALE L. & POL’Y REV. 273, 278 (1993) (questioning whether big donors have become so
dominant that they crowd out meaningful participation by smaller donors); Edward B.
Foley, Equal-Dollars-Per-Voter: A Constitutional Principle of Campaign Finance, 94
COLUM. L. REV. 1204, 1213 (1994) (arguing that the allowing massive donations robs
people of the equal opportunity to persuade others to their own view point). These
arguments often make an analogy to the voting context (“one-dollar, one vote”). See, e.g.,
David Cole, First Amendment Antitrust: The End of Laissez-Faire in Campaign Finance, 9
YALE L. & POL’Y REV. 236, 244 (1991) (“Unless [monetary] political participation is in
some measure equalized, the ‘one person, one vote’ guarantee is in danger of being
reduced to a formalistic symbol.”); Foley, supra, at 1237 (arguing that it is no more wrong
for a citizen to be able to purchase a vote than it is for a citizen to be able to purchase the
right to persuade others); Kathleen M. Sullivan, Political Money and Freedom of Speech,
30 U.C. DAVIS L. REV. 663, 671–72 (1997) (arguing that each person should have an equal
formal opportunity to influence the outcome of an election).
3 The main exception is a series of famous papers by Spencer Overton in around the
turn of this century, which we update and extend here. See generally Spencer Overton,
Voices from the Past: Race, Privilege, and Campaign Finance, 79 N.C. L. REV. 1541 (2001)
[hereinafter Overton, Voices] (arguing that existing literature on campaign finance reform
is incomplete because it ignores the sources of the wealth gaps that affect campaign
May 2022] FINANCIAL INCLUSION IN POLITICS 569

Our study provides the crucial missing piece to this conversation.

The new data we present here help to establish that, while everyone’s
campaign donations, or “speech” and “association,” are theoretically
protected under the Court’s deregulation of campaign finance, the
people who are most able to enjoy that protection by contributing to
campaigns are not only wealthy, they are almost all white.4 Consistent
with speculation by some observers in the past, campaign finance
deregulation has had disproportionate racial impacts.5
More recently, social scientists have established many linkages
between political donations, access, and power. Here, we contribute
the racial evidence to support and expand the argument: The advan-
tages that accrue to donors accrue disproportionately to white people,
since white people donate ninety-one percent of all individual cam-
paign contributions.6 The flood of white money into our campaigns
has systematic effects that not only affect who gets to run, but who is
elected, who gains access to elected officials, whose preferred policies
are enacted, and who is represented by elected officials that look like
them. As white donors accrue these benefits, the racial wealth gap
expands further, making the playing field even less racially equal in
subsequent elections. Figure 1 illustrates this argument. This figure
shows the flow of racial wealth inequality through our campaign
finance, electoral, and policymaking systems. Donating, running for
office, voting, lobbying elected officials, and influencing the poli-
cymaking process are all forms of political participation.

finance); Spencer Overton, But Some Are More Equal: Race, Exclusion, and Campaign
Finance, 80 TEX. L. REV. 987 (2002) [hereinafter Overton, More Equal] (arguing that
reform proposals which ignore the role of race in campaign finance are woefully
incomplete).
4 DAVID B. MAGLEBY, JAY GOODLIFFE & JOSEPH A. OLSEN, WHO DONATES IN
CAMPAIGNS: THE IMPORTANCE OF MESSAGE, MESSENGER, MEDIUM, AND STRUCTURE 40
(2018) (“Donors to presidential and congressional candidates . . . have overwhelmingly
been rich, well-educated, middle-aged, white males; and the word overwhelmingly is not an
exaggeration.”). Magleby, Goodliffe, and Olsen use a survey to study a sample of donors
from two presidential elections. They managed to contact just under 7,000 donors—a
tremendous survey effort but one that falls short of the data we have now. Here, we use
the entire set of itemized contributions (over 87 million) to all federal campaigns from 1980
to 2012.
5 See generally Overton, Voices, supra note 3; Overton, More Equal, supra note 3.
6 This finding is once again consistent with the findings of Magleby, Goodliffe and
Olsen. See MAGLEBY ET AL., supra note 4, at 47 (finding that between eighty-seven and
eighty-nine percent of donors to presidential elections in their random sample of donors
from 2008 and 2012 were white).
570 NEW YORK UNIVERSITY LAW REVIEW [Vol. 97:566

FIGURE 1. FLOW OF RACIAL WEALTH INEQUALITY

Despite major changes in civil rights policy and an increasingly

diverse electorate, the racial wealth gap in the United States continues
to grow,7 with the median white family holding over ten times more
wealth than the median Black family. One potential cause is the out-
sized influence of white donors in electoral politics, an influence that
is growing over time as campaigns get more expensive.8 It is nearly
impossible to change policy to reduce the racial wealth gap when cam-
paign donations influence who is on the ballot (the “selectorate”) and
ultimately who governs.9
Campaign finance and voting should be thought of as parts of a
broader, continuous, and mutually reinforcing system. Campaign
financing determines who has viable candidacies. It determines which
candidates are more likely to be elected.10 It also determines who has
greater access to elected officials as they consider legislation.11 Cam-
paign financing is more than just political speech; it is a key gateway
to meaningful participation in elections, voting, and policymaking
influence. The narrow First Amendment approach to campaign
finance is, therefore, ripe for reconsideration.

7 See THOMAS SHAPIRO, TATJANA MESCHEDE & SAM OSORO, INST. ON ASSETS AND
SOC. POL’Y, THE ROOTS OF THE WIDENING RACIAL WEALTH GAP: EXPLAINING THE
BLACK-WHITE ECONOMIC DIVIDE 1 (2013), https://drum.lib.umd.edu/bitstream/handle/
1903/24590/racialwealthgapbrief.pdf [https://perma.cc/X9DM-KLPD].
8 See Karl Evers-Hillstrom, Most Expensive Ever: 2020 Election Cost $14.4 Billion,
OPEN SECRETS, (Feb. 11, 2021, 1:14 PM), https://www.opensecrets.org/news/2021/02/2020-
cycle-cost-14p4-billion-doubling-16 [https://perma.cc/377L-3ZPV] (discussing how political
spending in the 2020 election totaled $14.4 billion, making the election the most expensive
of all time).
9 See generally Abhay P. Aneja, Voting for Welfare, 109 CALIF. L. REV. 2013 (2021)
(arguing that taking on economic inequality is only possible where the disadvantaged
group is sufficiently powerful).
10 See Adam Bonica, Professional Networks, Early Fundraising, and Electoral Success,
16 ELECTION L.J. 153, 154 (2017) (pointing out that there is a close relationship between
fundraising and primary election outcomes).
11 See infra Section I.B.
May 2022] FINANCIAL INCLUSION IN POLITICS 571

Little scholarly attention has been given to the fact that racial
minorities constitute a disproportionately small share of donors12 and
the legal ramifications that follow from this fact. Thus, we now con-
sider how racial political inequality under deregulated campaign
finance practices may trigger the special protections afforded to racial
minorities with regard to the right to vote under the VRA. The statute
provides courts substantial latitude to determine whether a jurisdic-
tion engages in political discrimination against racial minorities.13 This
latitude is a feature, not a bug, when it comes to conceptualizing the
absence of campaign finance regulation as a voting rights injury. Both
the unequal opportunity of minorities to influence electoral politics
through contributions, as well as the representational harms that arise
because of minorities’ low average economic status, are analogues of
the classic VRA injuries of vote denial and vote dilution.
The Court’s race-blind approach to campaign finance thus sits
uncomfortably beside American ideals of equal protection and voting
rights. Plaintiffs raising an Equal Protection claim based on the state’s
failure to act to regulate campaign finance in an effort to correct these
inequalities would have an uphill battle.14 The Court’s voting rights
jurisprudence, on the other hand, embraces state efforts to treat
voters equally and views with great skepticism systems which deny or
dilute votes, including minorities’ votes, particularly under the VRA.15
Because McCutcheon v. FEC acknowledged a “right to participate,”16
there is an opening to harmonize the voting rights and campaign
finance jurisprudence. The Court should conceptualize both voting

12 Exceptions include work by Terry Smith and Spencer Overton, as well as recent
work by Joshua Sellers, David Magleby, Jay Goodliffe, and Joseph Olsen. See Overton,
Voices, supra note 3; Overton, More Equal, supra note 3; Joshua S. Sellers, Election Law
and White Identity Politics, 87 FORDHAM L. REV. 1515 (2019); MAGLEBY ET AL., supra
note 4.
13 The original VRA provided the courts with little concrete guidance on how to
diagnose a voting rights violation. To offer courts contemporaneous guidance on how to
interpret the amended section 2, the Senate Judiciary Committee issued a report (the
“Senate Report”) that enumerated a set of factors to consider when determining if a
political system was “equally open” to minority voters. Christopher S. Elmendorf, Kevin
M. Quinn & Marisa A. Abrajano, Racially Polarized Voting, 83 U. CHI. L. REV. 587,
597–98 (2016) (citing S REP. NO. 97-417, at 28–29 (1982) (listing all seven factors). These
factors were derived from the analytical framework of White v. Regester, 412 U.S. 755
(1973), and reaffirmed by Zimmer v. McKeithen, 485 F.2d 1297 (5th Cir. 1973) (en banc).
14 Today’s court would probably fail to find state action. See infra Section III.A.2.
15 Thornburg v. Gingles, 478 U.S. 30, 31 (1986). See also Ohio State Conf. of NAACP v.
Husted, 768 F.3d 524, 554 (6th Cir. 2014), vacated, No. 14-3877, 2014 WL 10384647 (6th
Cir. Oct. 1, 2014); League of Women Voters of N.C. v. North Carolina, 769 F.3d 224, 240
(4th Cir. 2014) (“[W]e agree with the Sixth Circuit that a Section 2 vote-denial claim
consists of two elements . . . .”); Veasey v. Abbott, 830 F.3d 216, 244 (5th Cir. 2016) (“We
now adopt the two-part framework employed by the Fourth and Sixth Circuits . . . .”).
16 McCutcheon v. FEC, 572 U.S. 185, 203 (2014) (plurality opinion).
572 NEW YORK UNIVERSITY LAW REVIEW [Vol. 97:566

and contributing to campaigns as forms of political participation

worthy of protection.17
We are, of course, not the first scholars to suggest that the First
Amendment approach to campaign finance regulation should be
revisited,18 nor that it is an overly narrow approach to a continuous
electoral process.19 We are not even the first to argue that campaign
finance deregulation falls unevenly on class20 and racial21 lines. How-
ever, most of the work so far in this vein has flown from deep norma-
tive concerns, supported by very limited data available at the time of
the writing. Our contribution to this debate comes from the rich data
and statistical analysis that we bring to bear on these issues, and our
exploration of how this data should affect our jurisprudence.
We begin with Federal Elections Commission (FEC) data avail-
able in Bonica’s Database on Ideology and Money in Elections
(DIME).22 The dataset is comprised of over 87 million individual con-
tributions from 27 million Americans from 1980 through 2012,
amounting to over $33 billion in total.23 With this dataset in hand, we
can generate data on the racial identities of campaign donors using an
innovative statistical technique to predict an individual’s (census-
categorized) race using the information in their name and geographic
location.24 This technique provides, for the first time, the opportunity
for comprehensive, externally valid estimates of the racial makeup of
money in American politics. It allows us to add an empirically verified

17 See Robert Yablon, Voting, Spending, and the Right to Participate, 111 NW. U. L.
REV. 655, 691–92 (2017) (arguing that voting and other forms of political participation
should not be treated so differently by the court, and, instead, should be seen as different
manifestations of the same right).
18 See e.g., Jessica A. Levinson, The Original Sin of Campaign Finance Law: Why
Buckley v. Valeo Is Wrong, 47 U. RICH. L. REV. 881, 882 (2013) (“To solve what ails our
government . . . [a] re-examination of the Court’s decision to equate political money . . . to
political speech is overdue.”); Foley, supra note 2, at 1206 (arguing that constitutional law
is doing exactly the opposite of what it should be doing in prohibiting campaign finance
restrictions, and that it should instead require them); Richard Briffault, On Dejudicializing
American Campaign Finance Law, 27 GA. ST. U. L. REV. 887, 898–900 (2011) (arguing that
the distinction between contributions and personal expenditures which the court makes in
allocating First Amendment protection is problematic).
19 See Yablon, supra note 17, at 700–01.
20 See Raskin & Bonifaz, supra note 2, at 277.
21 See generally Overton, Voices, supra note 3; Overton, More Equal, supra note 3.
22 Adam Bonica, Database on Ideology, Money in Politics, and Elections: Public
Version 2.0, STAN. U. LIBR. (Mar. 11, 2016, 2:01 PM), https://data.stanford.edu/dime
[https://perma.cc/S9TW-FLC3]. This dataset uses FEC data compiled by the Sunlight
Foundation and the National Institute for Money in Politics.
23 Id.
24 The method applied is documented in a recent paper by Jacob M. Grumbach and
Alexander Sahn. See Jacob M. Grumbach & Alexander Sahn, Race and Representation in
Campaign Finance, 114 AM. POL. SCI. REV. 206, 210–11 (2020).
May 2022] FINANCIAL INCLUSION IN POLITICS 573

racial dimension to the hairy problem of campaign financing in this

country.
After statistically describing the racial makeup of campaign con-
tributions, we use the data to explore the relationship between race,
contribution, and representation. First, we show that fundraising is an
obstacle for racial minority candidates. Specifically, our analysis shows
that, all else equal, more expensive elections decrease the likelihood
that racial minority candidates run for office relative to white candi-
dates. Second, we show that campaign contributions from racial
minorities affect representation in Congress. When Black donors con-
tribute greater shares of campaign contributions, it results in more
liberal-leaning legislative voting from their congressional representa-
tive, all else equal. As we also show, this brings congressional repre-
sentation more in line with the political attitudes of Black
constituents.
Public financing is the main policy tool to address racial inequali-
ties in campaign finance. Public financing holds promise for correcting
unequal donor power, diversifying the donor and candidate pool, and
improving representation for constituents, who are more likely to be
donors in publicly funded systems than in privately funded systems.25
There are only a handful of robust public financing programs in the
United States.26 As a result, studying them is difficult, because the
number of observations is, necessarily, very small.27 However, recent
studies suggest that public financing programs have had some of the
salutary effects promised by reformers.28
For purposes of legitimacy and public buy-in, we will argue that
public financing should be implemented by the policymakers at the
federal, state, county, and city level. But we also do not concede the
possibility that courts could require public financing in response to

25 See generally Nirali Vyas, Chisun Lee & Gregory Clark, Small Donor Public
Financing Could Advance Race and Gender Equity in Congress, BRENNAN CTR. FOR JUST.
(Oct. 15, 2020), https://www.brennancenter.org/our-work/research-reports/small-donor-
public-financing-could-advance-race-and-gender-equity [https://perma.cc/B34V-L9FU].
26 Neil Mahotra, The Impact of Public Financing on Electoral Competition: Evidence
from Arizona and Maine, 8 ST. POL. & POL’Y Q. 263, 264 (2008) (“Only two states have
offered complete public financing of state legislative campaigns for multiple election
cycles: Arizona and Maine.”).
27 Robert M. Stern, Public Financing in the States and Municipalities in Public
Financing in American Elections (Costas Panagopoulos ed., 2011), 62–65.
28 Malhotra, supra note 26, at 263; PUBLIC FINANCING IN AMERICAN ELECTIONS, supra
note 27; Patrick D. Donnay & Graham P. Ramsden, Public Financing of Legislative
Elections: Lessons from Minnesota,” 20 LEGIS. STUD. Q. 351, 351 (1995); Brian J. McCabe
& Jennifer A. Heerwig, Diversifying the Donor Pool: How Did Seattle’s Democracy
Voucher Program Reshape Participation in Municipal Campaign Finance?, 18 ELECTION L.
J. 323, 323 (2019).
574 NEW YORK UNIVERSITY LAW REVIEW [Vol. 97:566

challenges under the Voting Rights Act. Public financing can help
equalize opportunities for minority voters and candidates to partici-
pate meaningfully in the political process, as is mandated under the
Voting Rights Act and the Constitution. Judicial imposition of public
financing is a second-best solution; nevertheless, we believe that race-
blind jurisprudence in the campaign finance context is untenable in
the face of new data on the racial distribution of political contribu-
tions. Courts have forced states to do equally—if not more—ambi-
tious reforms, from prison reform to school financing.
This Article proceeds as follows. Part I briefly explains the racial
wealth gap and its persistence over time, building the foundation for
our argument that a race-blind approach to campaign finance is inap-
posite. We then demonstrate our empirical findings on white domi-
nance of campaign financing; in Part II, we argue that the Court’s
deregulation of campaign finance contributes to underrepresentation
of racial minorities in the political sphere. Part III explains how
deregulation of campaign finance has opened the door to an Equal
Protection or Voting Rights Act challenge, though we are clear-eyed
about these claims’ chances of succeeding in the current moment.
Finally, we offer reformers a way through in Part IV, explaining policy
options that may ameliorate some of the ways racial inequality in cam-
paign finance disadvantages minorities in the political process.

I
RACIAL INEQUALITY IN POLITICAL PARTICIPATION &
REPRESENTATION
Wealth provides individuals the ability to contribute money to
political campaigns. However, wealth holding is racially unequal,
which leads to unequal opportunity to participate in the campaign
finance system.29 In this Part, we first provide historical background
on the origins of the racial wealth gap in the United States, which has
led to a racial gap in campaign contributing. Second, we explain how
campaign contributions affect electoral politics and political represen-
tation, based on social science produced in the past twenty years.
If campaign contributions influence political representation, then
racial disparities in contributing have consequences for representa-
tion. Our final task in this Part—and one of our central contributions
of the Article—is to use novel data on the racial identities of cam-
29 Neil Bhutta, Andrew C. Chang & Lisa J. Dettling. Disparities in Wealth by Race and
Ethnicity in the 2019 Survey of Consumer Finances, BD. OF GOVERNORS OF THE FED.
RSRV. SYS. (2020), https://www.federalreserve.gov/econres/notes/feds-notes/disparities-in-
wealth-by-race-and-ethnicity-in-the-2019-survey-of-consumer-finances-20200928.htm
[https://perma.cc/RQ4Z-WSX4].
May 2022] FINANCIAL INCLUSION IN POLITICS 575

paign donors to analyze these racial disparities and their conse-

quences. We show that the advantages that accrue to donors accrue to
white people, who dominate the donor class in a way that far outstrips
their share of the American population and electorate. As Overton
argues, if state discrimination has widened the racial wealth gap, and
campaign contributions affect the quality of minority representation,
then campaign finance structures that rely on private money will have
representational consequences.30

A. Historical Background: Disparities in Economic Status and

Political Inequality
The racial distribution of economic status in the United States
paints a stark picture of inequality. For instance, the earning gap
between Black and white men is as large today as it was before the
Civil Rights era,31 and Black unemployment has for decades been an
order of magnitude higher than the white unemployment rate.32
Across various data sources and methods of measurement, white fam-
ilies also hold significantly more wealth than both Black and Latino
families. Social scientists like Thomas Shapiro estimate that the
median white family possesses over $236,000 more wealth than the
median Black family—a gap that has tripled since 1984.33 This empir-
ical fact holds despite increased educational attainment among racial
minorities in the post-Civil Rights period.34
In order to draw the connection between racial economic dispari-
ties, campaign financing, and public policy, we provide a brief history
of how American public policies have contributed to racial differences

30 Overton, More Equal, supra note 3, at 1002–03.

31 See Patrick Bayer & Kerwin Kofi Charles, Divergent Paths: A New Perspective on
Earnings Differences Between Black and White Men Since 1940, 133 Q.J. ECON. 1459, 1459
(2018) (“[T]he median black man’s relative position in the earnings distribution has
remained essentially constant since 1940.”).
32 See generally Robert W. Fairlie & William A. Sundstrom, The Racial Unemployment
Gap in Long-Run Perspective, 87 AM. ECON. REV. 306 (1997) (tracking the unemployment
gap from 1880 to the current day).
33 THOMAS SHAPIRO, TATJANA MESCHEDE & SAM OSORO, INST. ON ASSETS & SOC.
POL’Y, THE ROOTS OF THE WIDENING RACIAL WEALTH GAP: EXPLAINING THE BLACK-
WHITE ECONOMIC DIVIDE 1 (2013), https://heller.brandeis.edu/iasp/pdfs/racial-wealth-
equity/racial-wealth-gap/roots-widening-racial-wealth-gap.pdf [https://perma.cc/C7ZP-
GDQ6]; see also Nick Noel, Duwain Pinder, Shelly Stewart & Jason Wright, The Economic
Impact of Closing the Racial Wealth Gap, MCKINSEY & CO. (Aug. 13, 2019), https://
www.mckinsey.com/industries/public-sector/our-insights/the-economic-impact-of-closing-
the-racial-wealth-gap [https://perma.cc/VYZ8-P5NU] (“The median white family had more
than ten times the wealth of the median black family in 2016 . . . . In fact, the racial wealth
gap between black and white families grew from about $100,000 in 1992 to $154,000 in
2016.”).
34 See SHAPIRO ET AL., supra note 33, at 5–6.
576 NEW YORK UNIVERSITY LAW REVIEW [Vol. 97:566

in economic status that we observe today. As other law of democracy

scholars have noted, these differences have underappreciated implica-
tions for racial minorities’ ability to participate in the political process
through financial support of their preferred candidates.35 In the first
centuries of the Republic, laws permitting chattel slavery (and Indian
removal) facilitated the labor coercion of nonwhites, and a transfer of
income and wealth to whites.36 In 1860, eighty-nine percent of Black
Americans were enslaved.37 The best evidence from economic his-
torians suggests that by the end of the Civil War, per capita Black
income was roughly twenty-five percent of whites’.38
Reconstruction introduced a brief period of relative equal polit-
ical opportunity and good-faith representation of minorities in
America. Black citizens were elected to local and state offices for the
first time.39 Democratic inclusion in turn produced social and eco-
nomic gains for Black people.40 Representatives in turn focused on
improving the economic conditions of newly emancipated Black
Americans.41 This period witnessed Black families benefitting from
public goods for the first time.42 Access to government resources
during this period of relative political equality had downstream bene-
fits. Investments in schooling, for example, contributed to shrinking
Black-white educational and earnings gaps.43
The prosperity of the Reconstruction period dissipated quickly,
however. Southern whites reacted to Reconstruction by passing a
suite of policies that eliminated Black voting clout and economic

35 See generally Overton, Voices, supra note 3; Overton, More Equal, supra note 3.
36 See Cheryl I. Harris, Whiteness as Property, 106 HARV. L. REV. 1707, 1718 (1993)
(“Through slavery, race and economic domination were fused.”).
37 The Making of African American Identity: Volume 1, 1500-1865, NAT’L HUMANS.
CTR., https://nationalhumanitiescenter.org/pds/maai/enslavement/text3/text3read.htm
[https://perma.cc/XDP5-8F87].
38 Robert A. Margo, Obama, Katrina, and the Persistence of Racial Inequality, 76 J.
ECON. HIST. 301, 306 (2016).
39 See Trevon D. Logan, Do Black Politicians Matter? Evidence from Reconstruction,
80 J. ECON. HIST. 1, 6 (2020). See generally ERIC FONER, RECONSTRUCTION: AMERICA’S
UNFINISHED REVOLUTION, 1863–1877 (Perennial Classics 2014) (1988) (providing a survey
of advancements in the period immediately following the Civil War).
40 See Logan, supra note 39, at 27 (presenting a table showing that Black officeholders
during Reconstruction increased per capita county tax revenues).
41 See id.
42 See id. at 4 (showing that Black politicians generated greater tax revenue and greater
literacy for Black males).
43 See Marianne H. Wanamaker, 150 Years of Economic Progress for African American
Men: Measuring Outcomes and Sizing Up Roadblocks, 32 ECON. HIST. DEVELOPING
REGIONS 211, 214–15 (2017) (discussing how Black students were “on relatively equal
footing to whites in terms of school access”).
May 2022] FINANCIAL INCLUSION IN POLITICS 577

power.44 These “Jim Crow” laws took many forms—including poll

taxes, literacy tests, vouchers for good moral character, disqualifica-
tions for crimes of moral turpitude, and whites-only primaries.45 The
Supreme Court essentially endorsed this suppression. Giles v. Harris,
for example, neutered the Fifteenth Amendment by divesting federal
courts of the power to enforce the Amendment’s guarantees.46
Jim Crow suppression left Black Americans in positions of
extreme, concentrated economic disadvantage.47 Black political par-
ticipation in the South, where most Black Americans lived, plum-
meted. In some states, Black voting participation hovered in the single
digits.48 The exclusion of Black Americans from politics facilitated
numerous forms of labor repression, such as the passage of vagrancy49
and anti-enticement50 laws, as well as racial violence that went unad-

44 See generally E RIC F ONER , R ECONSTRUCTION : A MERICA ’ S U NFINISHED

REVOLUTION, 1863–1877 (Perennial Classics 2014) (1988).
45 See Daniel B. Jones, Werner Troesken & Randall Walsh, Political Participation in a
Violent Society: The Impact of Lynching on Voter Turnout in the Post-Reconstruction
South, 129 J. DEV. ECON. 29, 33 (2017) (listing all Jim Crow-style political restrictions and
their dates of enactment, by state); see also J. MORGAN KOUSSER, THE SHAPING OF
SOUTHERN POLITICS: SUFFRAGE RESTRICTION AND THE ESTABLISHMENT OF THE ONE-
PARTY SOUTH, 1880–1910, at 38–39 (1974).
46 Giles v. Harris, 198 U.S. 475 (1903) (holding that federal courts could not hear cases
brought against state officials claiming that those officials were conspiring to prevent Black
citizens from voting).
47 See Jennifer Roback, Southern Labor Law in the Jim Crow Era: Exploitative or
Competitive?, 51 U. CHI. L. REV. 1161, 1161 n.1 (1984) (arguing that the economic legacy
of the postbellum South was an outgrowth of political restrictions on Black Americans
which can be viewed “as a legal and political system that had economic consequences. The
labor laws . . . are examples of economic legislation passed under the umbrella of
disenfranchisement”); Wanamaker, supra note 43, at 214–15 (describing the eroding
socioeconomic wellbeing of Black Americans during the Jim Crow period). See generally
Celeste K. Carruthers & Marianne H. Wanamaker, Separate and Unequal in the Labor
Market: Human Capital and the Jim Crow Wage Gap, 35 J. LAB. ECON. 655 (2017)
(describing wage and occupational status gaps in the South using Census data from 1940);
William J. Collins & Marianne H. Wanamaker, African American Intergenerational
Economic Mobility Since 1880 (Nat’l Bureau of Econ. Rsch., Working Paper No. 23395,
2021), https://www.nber.org/system/files/working_papers/w23395/w23395.pdf [https://
perma.cc/H6G6-2BFW] (finding large disparities in economic mobility between Black and
white Americans starting in the Jim Crow Era).
48 See John Lewis & Archie E. Allen, Black Voter Registration Efforts in the South, 48
NOTRE DAME L. 105, 112 (1972) (citing statistics indicating that Black registration across
the South was just 40.8%, compared to 63.1% for whites, and in Mississippi, it was just
6.7%, compared to 70.2% for whites).
49 See Roback, supra note 47, at 1164 (defining vagrancy laws as laws “designed to
prevent blacks from being unemployed or otherwise out of the labor force” and explaining
that these laws were designed to limit wage competition in the labor force).
50 Id. at 1166–68 (describing the use of anti-enticement laws to prevent employers from
“enticing” a worker away with higher wages, thereby keeping Black labor prices stagnant
and low).
578 NEW YORK UNIVERSITY LAW REVIEW [Vol. 97:566

dressed by state authorities.51 These formal and informal institutions

kept Black labor cheap for white property owners, and maintained a
social order favored overwhelmingly by white citizens.52 Political dom-
ination by white voters also led to laws segregating Black and white
Americans in all dimensions of social life—within restaurants, buses,
and railroads.53
In addition to discriminatory laws, Black exclusion from politics
shaped government spending on Black communities. Without the
political clout to affect the distribution of public goods and social wel-
fare expenditure, the quality of segregated Black schools deteriorated
and remained low for decades.54 Substandard Black schools limited
the opportunities for children and depressed earning opportunities
later in life—a fact well established by labor economists today.55
Minorities in the North were not shielded from the impact of
state-sanctioned discrimination. In the aftermath of the Great
Depression, the Roosevelt Administration created the Home Owners’
Loan Corporation (HOLC) in 1933 to stabilize rapidly deteriorating
housing markets.56 The agency lent money to distressed mortgagors in
order to “resurrect[] the American mortgage markets.”57 Ostensibly
to manage the risk involved in home credit provision, though, the
agency designated areas that were worthy of government subsidiza-
tion.58 Unsurprisingly, these maps led to the systematic exclusion of

51 See Jones et al., supra note 45, at 41–44 (documenting the occurrences of lynching
between 1882 and 1912). See generally STEWART E. TOLNAY & E. M. BECK, A FESTIVAL
OF VIOLENCE: AN ANALYSIS OF SOUTHERN LYNCHINGS, 1882–1930 (1995) (identifying the
economic and social factors that led to occurrences of lynching).
52 See Roback, supra note 47, at 1162 (“The planters wanted to collude to hold down
black wages, both to increase their own profits and to solidify the dominant position of the
white race.”).
53 See Wanamaker, supra note 43, at 215 (“Disenfranchisement efforts hit full steam,
and various new laws and regulations served to segregate blacks and whites in every
dimension imaginable, including economic ones.”).
54 For excellent studies on how Jim Crow political disenfranchisement decreased the
quality of schools attended by Black children and caused an economic loss for Black
laborers while improving the economic conditions of landowners, see generally Suresh
Naidu, Suffrage, Schooling, and Sorting in the Post-Bellum U.S. South (Nat’l Bureau of
Econ. Rsch., Working Paper No. 18129, 2012), https://www.nber.org/system/files/
working_papers/w18129/w18129.pdf [https://perma.cc/HV44-MTHA]; Robert A. Margo,
Race Differences in Public School Expenditures: Disfranchisement and School Finance in
Louisiana, 1890-1910, 6 SOC. SCI. HIST. 9 (1982) (focusing on schools).
55 See Wanamaker, supra note 43, at 215 (explaining that up to fifty percent of the
Black-white wage gap by 1940 was attributable to differences in school quality).
56 See LOUIS HYMAN, DEBTOR NATION: THE HISTORY OF AMERICA IN RED INK 46–47
(2011) (explaining the function of HOLC and its limitations).
57 Id. at 49.
58 CHLOE N. THURSTON, AT THE BOUNDARIES OF HOMEOWNERSHIP: CREDIT,
DISCRIMINATION, AND THE AMERICAN STATE 48–49 (2018).
May 2022] FINANCIAL INCLUSION IN POLITICS 579

people of color from home borrowing—a practice widely known as

“redlining.”59
In response to this state-sponsored economic subordination, the
Civil Rights movement emerged. Individual civil rights were intended
not only to confer equal citizenship status but also to improve the eco-
nomic mobility of Black Americans.60 The fruits of this movement
included the Civil Rights Act, the Economic Opportunity Acts, and
the Voting Rights Act—all of which were part of a broad-based
assault on racial and economic inequality.61 Protecting Black constitu-
ents’ voice in government was viewed as essential to ensuring a fair
redistribution of resources, as well as equal employment and educa-
tional opportunities.62 The redistribution, in turn, was viewed as nec-
essary to reverse the condition of the economically and politically
disenfranchised63—many of whom were mired in poverty after centu-
ries of slavery, and another eighty years of state-sanctioned
discrimination.64
To be sure, as Chief Justice Roberts noted in Shelby County v.
Holder, things did improve in the United States as a product of civil

59 See RICHARD ROTHSTEIN, THE COLOR OF LAW: A FORGOTTEN HISTORY OF HOW

OUR GOVERNMENT SEGREGATED AMERICA 64–65 (2017) (describing the mechanisms by
which the maps created by HOLC ended up excluding Black families from the benefits
HOLC provided).
60 See RISA L. GOLUBOFF, THE LOST PROMISE OF CIVIL RIGHTS 74 (2007) (describing
civil rights measures designed to confer mobility on Southern farm workers).
61 Aneja, supra note 9, at 2031–32 (describing the goals of all three laws and their
intended impact on ethno-racial disadvantage).
62 Steven F. Lawson, Freedom Then, Freedom Now: The Historiography of the Civil
Rights Movement, 96 AM. HIST. REV. 456, 463 (1991) (discussing how many at the
forefront of the civil rights movement, including the “backbone of the Montgomery bus
boycott, . . . viewed economic woes and political disfranchisement as deeply intertwined”);
see also Interview by Blackside, Inc. with Bayard Rustin, in Eyes on the Prize: America’s
Civil Rights Years (1954-1965), WASH. UNIV. LIBRS., FILM & MEDIA ARCHIVE (1979),
http://digital.wustl.edu/e/eop/eopweb/rus0015.0145.091bayardrustin.html [https://perma.cc/
KWK6-VU4A] (speaking of how, in order to change conditions of poor unemployment,
health, and education for Black people, enfranchised Black people would “have to go into
the ballot box”).
63 John Lewis, Chairman, Student Non-Violent Coordinating Comm., Speech at the
March on Washington (Aug. 28, 1963), https://snccdigital.org/inside-sncc/policy-statements/
march-washington-speech [https://perma.cc/KZ3B-X4W6] (“We all recognize the fact that
if any radical social, political and economic changes are to take place in our society, the
people, the masses, must bring them about.”).
64 For example, Bayard Rustin urged concerted political action not just for symbolic
rights, but for instrumental gains, in order obtain decent jobs, good wages, and
opportunities to advance socioeconomically. Rustin believed Black political action was
necessary “to destroy an[y] unjust laws and discriminatory practices,” for “total freedom,”
and for “equal pay and equal opportunity.” Bayard Rustin, The Meaning of Birmingham,
LIBERATION, June 1963, https://www.crmvet.org/info/bhammean.htm [https://perma.cc/
E33X-NJB2].
580 NEW YORK UNIVERSITY LAW REVIEW [Vol. 97:566

rights policies aimed to empower minorities socially and politically.65

The end of legal racial discrimination in voting, employment, public
accommodations, and housing led to at least a decade of rapid
progress in the economic conditions of racial minorities in America.66
Between 1959 and 1969, Black poverty rates decreased from 48% to
30%, while Black family income increased by 53%.67 The Black
middle class doubled in size from 1960 to 1970, partly in direct
response to pressures stemming from civil rights policies.68
Civil rights policies alone could not rectify the damage done by
centuries of state neglect of minority wellbeing. While the economic
gaps between whites and minorities converged temporarily, improve-
ment plateaued starting in the 1980s and continuing through the pre-
sent day. Racial disparities exist on many measures of substantive
wellbeing today. The unemployment rate for Black workers has for
decades been double that of white workers,69 and these disparities are
not explained by racial differences in educational attainment.70 Black
people are three times more likely to live in poverty as whites—essen-
tially the same rate observed fifty years ago.71 As alluded to at the
beginning of the Section, the racial differences in wealth have been
staggeringly large for generations.
Research from economics, political science, and sociology sug-
gests that the persistence of racial inequality is due in part to delib-
erate policy choices. Minority voters, however, appear powerless to
address these social ills through the political process.72 Given the
somber facts of persistent economic inequality along racial lines,

65 570 U.S. 529, 547–49 (2013).

66 See generally Marta Tienda & Leif Jensen, Poverty and Minorities: A Quarter-
Century Profile of Color and Socioeconomic Disadvantage, in DIVIDED OPPORTUNITIES:
MINORITIES, POVERTY, AND SOCIAL POLICY 23 (Gary D. Sandefur & Marta Tienda eds.,
1988).
67 Id. at 27, 31.
68 See generally BART LANDRY, THE NEW BLACK MIDDLE CLASS (1987).
69 See Fairlie & Sundstrom, supra note 32, at 307 fig.1 (demonstrating the increasing
gap in unemployment between Black workers and white workers).
70 See MARY C. DALY, BART HOBIJN & JOSEPH H. PEDTKE, FED. RSRV. BANK OF S.F.,
DISAPPOINTING FACTS ABOUT THE BLACK-WHITE WAGE GAP 4 (Anita Todd ed. 2017),
https://www.frbsf.org/economic-research/publications/economic-letter/2017/september/
disappointing-facts-about-black-white-wage-gap [https://perma.cc/3WBH-VM2W] (noting
that a “significant portion” of the gap is “unexplained,” and only five percentage points of
the gap can be explained through educational attainment).
71 In 1959, the 55.1% Black poverty rate was over three times that of whites. Michael
A. Fletcher, Fifty Years After March on Washington, Economic Gap Between Blacks,
Whites Persists, WASH. POST. (Aug. 28, 2013), https://www.washingtonpost.com/business/
economy/50-years-after-the-march-the-economicracial-gap-persists/2013/08/27/9081f012-
0e66-11e3-8cdd-bcdc09410972 [https://perma.cc/H566-AA9F].
72 This may be true both because they lack the numerical force, as well as the de facto
power that comes with being the economically dominant class.
May 2022] FINANCIAL INCLUSION IN POLITICS 581

scholars in the law of democracy should be asking themselves: Why

have democratic institutions failed to respond?
One reason may be that the financial barriers to meaningful par-
ticipation in politics—the type of participation that brings about
policy change—are prohibitive for racial minorities. We discuss in the
next Section the relationship between democratic structures financed
primarily through private money and the responsiveness to minority
interests. Black and Latino Americans simply lack the same level of
economic resources (e.g., income and wealth) held by white
Americans, highlighting a cyclical relationship between poverty and
political underrepresentation. The racial wealth gap affects the
amount of money that families from different ethnic and racial back-
grounds can spend, including in politics. As we explain below, cam-
paign contributors gain better access to elected representatives than
noncontributors. So, whereas we now have a formal equality of access
to the ballot box,73 equality of access to our representatives is still far
off.

B. Theory: Why Contribution Patterns Affect Minority Political

Selection and the Quality of Representation
The racial wealth gap described in the previous Section is likely
to produce a racial gap in campaign contributions. Such a contribu-
tions gap will produce racially unequal political outcomes if campaign
contributions buy influence. In this Section, we present evidence from
social science research on the multiple ways in which campaign contri-
butions affect (1) who is on the ballot (casting donors as the
“selectorate”), (2) who gets access to elected officials, and (3) who
gets their desired policies.
First, campaign contributions may influence the composition of
the population of candidates. If so, campaign donors serve as a kind of
“selectorate,” determining which candidates run viable or successful
election campaigns. Contributions may increase the probability that a
candidate wins a primary or general election contest, determining the
composition of individuals who serve in office. Research by political
scientist Adam Bonica shows that early fundraising is key to securing
party nomination in the primary election process.74 Quantitative
studies suggest that early money is an effective way for individuals and

73 See Voting Rights Act of 1965, Pub. L. No. 89-110, 79 Stat. 437 (1965) (barring all
attempts by a state to deny the right to vote on account of race or color). However, there
are still plenty of systematic barriers to vote, but that is beyond the scope of this paper.
74 Adam Bonica, Professional Networks, Early Fundraising, and Electoral Success, 16
ELECTION L.J. 153, 154 (2017).
582 NEW YORK UNIVERSITY LAW REVIEW [Vol. 97:566

groups, such as party insiders,75 lawyers,76 and other interest groups,77

to shape the candidate pool. This fundraising can both “clear the
field” by scaring off potential high-quality opponents and increase the
competitiveness of a favored but otherwise unlikely candidate.
Second, campaign contributions can buy access to politicians.78
For instance, a pathbreaking study by political scientists Joshua Kalla
and David Broockman provides causal evidence that donors are more
likely to be granted a meeting with their congressional representative
than nondonor constituents.79 Access to a politician’s time and atten-
tion provides individuals the potential to lobby on policy issues. Such
lobbying may directly influence the politician’s opinion on a given
policy issue. It also may affect the politician’s agenda, moving the
donor’s policy priorities to the top of the list. Access and lobbying are
potentially advantageous strategies for donors, as they may be able to
influence the “fine print” of legislation and agency rules in ways that

75 Hans J.G. Hassell, Party Control of Party Primaries: Party Influence in Nominations
for the US Senate, 78 J. POL. 75, 81 (2016); HANS J.G. HASSELL, THE PARTY’S PRIMARY:
CONTROL OF CONGRESSIONAL NOMINATIONS 31 (2018).
76 See generally Adam Bonica, Why Are There So Many Lawyers in Congress?, 45
LEGIS. STUD. Q. 253 (2020) (finding that the advantage lawyers have in early fundraising
explains their success in being elected at higher rates than candidates from other
professions).
77 See generally Jacob M. Grumbach, Interest Group Activists and the Polarization of
State Legislatures, 45 LEGIS. STUD. Q. 5 (2020) (finding that the effect interest group
activist donations have on the political process is most impactful early in the candidate
selection process).
78 David Austen-Smith, Campaign Contributions and Access, 89 AM. POL. SCI. REV.
566, 575 (1995); Richard L. Hasen, Campaign Finance Laws and the Rupert Murdoch
Problem, 77 TEX. L. REV. 1627, 1645 (1999) (“[M]oney buys access, giving the contributor
. . . a greater chance of . . . mak[ing] an argument in favor of the contributor’s position on
legislation. . . . [N]on-contributors are much less likely to have [this advantage]. Those
buying access are using their campaign expenditures as part of a legislative strategy to
influence . . . the legislative process.”); Christine Stapleton, Trump in Palm Beach: For
2020 Fundraising, Mar-a-Lago Is a Money Machine, PALM BEACH POST (Feb. 21, 2020,
8:55 AM), https://www.palmbeachpost.com/story/news/politics/elections/2020/02/21/trump-
in-palm-beach-for-2020-fundraising-mar-a-lago-is-money-machine/112238262 [https://
perma.cc/8VCK-MRH3] (“‘Every dollar is important but when I have someone tapping on
my shoulder to close a $100 donation and I’m speaking to a six-figure guy, it’s not good use
of our time,’ Trump Jr. said . . . .”); see also Richard L. Hall & Frank W. Wayman, Buying
Time: Moneyed Interests and the Mobilization of Bias in Congressional Committees, 84 AM.
POL. SCI. REV. 797, 814 (1990) (finding that campaign contributions “mobilize” legislators
who are already likely to support an interest group’s positions and that contributions
bought the “marginal time, energy, and legislative resources that committee participation
requires”).
79 See Joshua L. Kalla & David E. Broockman, Campaign Contributions Facilitate
Access to Congressional Officials: A Randomized Field Experiment, 60 AM. J. POL. SCI.
545, 552 tbl.1 (2016) (finding that 2.4% of offices arranged a meeting with a constituent
whereas 12.5% did so when the attendee was revealed to be a donor).
May 2022] FINANCIAL INCLUSION IN POLITICS 583

are obscure to ordinary voters—limiting punishment through elec-

tions, or, in the case of business donors, consumer markets.
Finally, common in the mass public is the belief that campaign
contributions serve as quid pro quo bribes in which a donor contrib-
utes to a politician’s campaign in exchange for an action such as voting
for a particular piece of legislation. Given that bribery is illegal and
there are strong incentives to avoid being caught doing it, it is unsur-
prising that quantitative studies find little clear evidence of quid pro
quo on legislative votes.80 Nevertheless, there is evidence that lob-
bying organizations use campaign contributions to buy amendments
to legislation,81 which is more difficult to detect than vote buying.
Social scientists have provided additional contextual evidence to
the notion that money in politics influences political outcomes,
lending greater credence to the notion that contributions buy access
and shape the candidate pool. For instance, political scientists Sanford
C. Gordon, Catherine Hafer, and Dimitri Landa show that corporate
executives whose pay is more tied to firm performance are more likely
to contribute to campaigns, suggesting an instrumental influence
strategy rather than a taste-based explanation for giving.82 Corpora-
tions that contribute more tend to be less compliant with regulation.83
Corporations whose business models are more exposed to regulation
tend to give more to the members of Congress in committees that
oversee relevant regulatory agencies.84

80 See Gregory Wawro, A Panel Probit Analysis of Campaign Contributions and Roll-
Call Votes, 45 AM. J. POL. SCI. 563, 576 (2001) (finding that contributions from PACs do
not result in decisions by politicians that directly favor PAC preferences). In practical
terms, quantitative research designs are unlikely to detect vote buying. It is unlikely that
contributions within legal limits would convert, for instance, a member of Congress from
supporting to opposing abortion rights. In addition, the set of roll-call votes that appear on
legislative agendas are strategic, a fundamental challenge for quantitative analyses of
influence on legislative votes.
81 Amy Melissa McKay, Buying Amendments? Lobbyists’ Campaign Contributions and
Microlegislation in the Creation of the Affordable Care Act, 45 LEGIS. STUD. Q. 327, 350–51
(2019).
82 See Sanford C. Gordon, Catherine Hafer & Dimitri Landa, Consumption or
Investment? On Motivations for Political Giving, 69 J. POL. 1057, 1068–69 (2007) (noting
that corporate executives make political donations because of “investment motivations,”
such as increasing the likelihood of being able to meet with a politician).
83 See Sanford C. Gordon & Catherine Hafer, Flexing Muscle: Corporate Political
Expenditures as Signals to the Bureaucracy, 99 AM. POL. SCI. REV. 245, 258 (2005) (finding,
for example, that the Nuclear Regulatory Commission (NRC) reduces inspections at
nuclear plants whose operators contribute more).
84 See Alexander Fouirnaies & Andrew B. Hall, The Exposure Theory of Access: Why
Some Firms Seek More Access to Incumbents Than Others 21–22 (Feb. 29, 2016)
(unpublished manuscript), https://www.andrewbenjaminhall.com/Fouirnaies_Hall_
Regulation.pdf [https://perma.cc/AH7G-TA29].
584 NEW YORK UNIVERSITY LAW REVIEW [Vol. 97:566

Both the access effect and the selectorate effect of contributions

disrupt traditional models of representation, the relationship between
the governing and the governed. The delegate model of representation
posits that politicians should be responsive to dynamics in the opin-
ions of their constituents and continually update their issue positions
based on the desires of citizens in their districts.85 It is easy to see how
unequal political influence via campaign contribution gaps can disrupt
this model of representation. Contributions buy access to politicians,
giving donors greater opportunity to communicate their preferences
to officeholders and potentially even persuade politicians to take
actions they would not have taken otherwise.
Indeed, social science evidence suggests that legislators are more
responsive to donor opinion than constituent opinion. Specifically, the
correlation between donors’ policy attitudes and legislative roll-call
votes is stronger than the correlation between a legislative district’s
constituent opinion and the legislator’s votes.86 Such misalignment
may, by itself, give rise to a cognizable claim by reformers. As
Nicholas Stephanopoulos has written, the “promotion of alignment
between voters’ policy preferences and their government’s policy out-
puts” is a government interest of “the gravest importance.”87
Stephanopoulos argues for alignment in policy views between the con-
stituency’s median voter and the representative as well as with actual
policy outcomes.88 Because of the systematic skew in representation
that social scientists are able to document, we are a long way from
alignment between the constituency and its elected representatives.
In contrast to the delegate model, the trustee model of represen-
tation suggests that politicians should faithfully pursue the interests of
their constituents, but with considerable autonomy and opportunity to
use expert judgment in doing so.89 Going back to the eighteenth-
century political philosophy of Edmund Burke, constituents in the
trustee model should select representatives who will faithfully pursue

85 See generally Donald J. McCrone & James H. Kuklinski, The Delegate Theory of
Representation, 23 AM. J. POL. SCI. 278 (1979) (explaining the delegate theory of
representation and the conditions necessary for it to apply).
86 Brandice Canes-Wrone & Nathan Gibson, Does Money Buy Congressional Love?
Individual Donors and Legislative Voting, 46 CONGRESS & PRESIDENCY 1, 14–15 (2019).
87 Nicholas O. Stephanopoulos, Aligning Campaign Finance Law, 101 VA. L. REV.
1425, 1428 (2015).
88 Id.
89 See Edmund Burke, Speech to the Electors of Bristol (Nov. 3, 1774), in 2 THE
WORKS OF THE RIGHT HONORABLE EDMUND BURKE 95–96 (3d ed. Boston, Little, Brown,
& Co. 1869) (explaining to his electors that he will serve his electors’ interests but informed
through his own judgment, even if such judgment conflicts with their opinion); Jane
Mansbridge, Clarifying the Concept of Representation, 105 AM. POL. SCI. REV. 621, 623
(2011).
May 2022] FINANCIAL INCLUSION IN POLITICS 585

the best interest of their constituents, even though it may at times con-
flict with constituent opinion. However, donors’ role as a selectorate
allows them to systematically shape the characteristics of the trustees.
Racial minority (and women) voters often use descriptive identity
as a cue for selecting a representative that will faithfully serve as a
trustee to the interests of the group in the polity.90 Indeed, a large
body of social science evidence shows that descriptive representation
matters for substantive representation.91 Black members of Congress
are more likely to sponsor and vote for civil rights bills, and they are
more likely to vote for bills favored by Black Americans.92 Even in
terms of basic communication with constituents, white legislators
respond less often to the average communiqué from a Black constit-
uent than from a white constituent, but Black legislators do not.93

90 See Jane Mansbridge, Should Blacks Represent Blacks and Women Represent
Women? A Contingent “Yes”, 61 J. POL. 628, 638 (1999); Andy Baker & Corey Cook,
Representing Black Interests and Promoting Black Culture: The Importance of African
American Descriptive Representation in the U.S. House, 2 DU BOIS REV.: SOC. SCI. RSCH.
ON RACE 227, 236 (2005) (explaining that it is “being Black per se . . . that drove African
American members of Congress to pursue the . . . interests of their racial group” and that
this is “strong evidence for the effectiveness of descriptive representation”). See also
Celeste M. Montoya, Christina Bejarano, Nadia E. Brown & Sarah Allen Gershon, The
Intersectional Dynamics of Descriptive Representation, POL. & GENDER: FIRSTVIEW (Mar.
16, 2021), https://www.cambridge.org/core/journals/politics-and-gender/article/
intersectional-dynamics-of-descriptive-representation/
E01BC0B489B95DAF714DE3BBC720A6F8 [https://perma.cc/KHW7-L4HL] (arguing
that descriptive representation has both a substantive and symbolic impact on politics and
procedure); Susan A. Banducci, Todd Donovan & Jeffrey A. Karp, Minority
Representation, Empowerment, and Participation, 66 J. POL. 534 (2004); Melinda S.
Jackson, Priming the Sleeping Giant: The Dynamics of Latino Political Identity and Vote
Choice, 32 POL. PSYCH. 691 (2011) (analyzing the impact of group identity on the
preferences of Latino voters); Rene R. Rocha, Caroline J. Tolbert, Daniel C. Bowen &
Christopher J. Clark, Race and Turnout: Does Descriptive Representation in State
Legislatures Increase Minority Voting?, 63 POL. RSCH. Q. 890 (2010) (finding increased
participation among Black and Latino voters in states with high rates of descriptive
representation in their legislatures).
91 See, e.g., Daniel M. Butler & David E. Broockman, Do Politicians Racially
Discriminate Against Constituents? A Field Experiment on State Legislators, 55 AM. J. POL.
SCI. 463 (2011) (observing differential treatment of constituent requests to legislators
based on the racial identity of the legislator and the putative racial identity of the
requesting constituent); CHRISTIAN R. GROSE, CONGRESS IN BLACK AND WHITE: RACE
AND REPRESENTATION IN WASHINGTON AND AT HOME 8 (2011) (concluding that
“descriptive representation yields substantive representation in Congress”).
92 See Grose, supra note 91, at 83 (noting that Black legislators are five percent more
pro-civil rights than non-Black legislators); Michael D. Minta, Legislative Oversight and the
Substantive Representation of Black and Latino Interests in Congress, 34 LEGIS. STUD. Q.
193, 202–04 (2009); see also Robert R. Preuhs, The Conditional Effects of Minority
Descriptive Representation: Black Legislators and Policy Influence in the American States,
68 J. POLITICS 585, 586 (2006) (noting that the lack of minority representation in Congress
has so far prevented comprehensive studies on the matter).
93 See Butler & Broockman, supra note 91, at 471.
586 NEW YORK UNIVERSITY LAW REVIEW [Vol. 97:566

However, as a disproportionately small share of donors, racial minori-

ties have little ability to act as a selectorate.
In summary, campaign contributions can produce de facto quid
pro quo arrangements, but they are especially important for buying
access to officeholders and allowing donors to be a “selectorate” that
shapes the pool of viable candidates early in the political process.
Since contributions facilitate these forms of influence over candidates
and officeholders, campaign finance deregulation poses profound
challenges to traditional models of representation if racial minorities
are excluded from this form of participation. In the next Section, we
present our results on the racial makeup of campaign contributors in
American politics.

C. The Campaign Finance Participation Gap

1. An Overview of the “Racial Contributions Gap”: Static and
Dynamic Evidence
We now turn to the main results of our analysis of the racial dis-
tribution of campaign contributions. Below, Figure 2 shows the racial
makeup of important political actors. In each panel of the figure, the
light gray bar represents the percent of the group that is Asian
American, while the darkest gray and medium gray bars represent the
percent of the group that is Black or Latino, respectively. In each
group, the remaining share is white. We do not display bars for the
white percentages, because they would render the Asian, Black, and
Latino bars mostly illegible.
The leftmost panel shows the racial composition of registered
voters in the United States (as of 2012, given that this is the last year
covered in our campaign finance data, though later we analyze the
racial composition of voters in many elections over time). The middle
panel shows the racial composition of the 113th Congress. In the
rightmost panel, we show the percent of campaign contributions that
come from Asian, Black, and Latino donors.
May 2022] FINANCIAL INCLUSION IN POLITICS 587

FIGURE 2. BY-RACE DISTRIBUTION OF POLITICAL ACTORS94

As is immediately apparent, racial minorities make up larger pro-

portions of the U.S. electorate and even of members of Congress than
they do among campaign contributions. Registered voters are about
1% Asian, 11% Black, and 8% Latino. Members of the 113th
Congress were 2% Asian, 8% Black, and 6% Latino. Congress has
since diversified further. Nearly one-fourth of members of the 116th
Congress (2019–2020) are racial minorities.95
Although racial minorities are still underrepresented among U.S.
voters and members of Congress compared to their shares of the
overall adult citizen population, campaign contributions are even
more unrepresentative. We estimate that 91% of individual campaign
contributions to state and federal candidates between 1980 and 2012
came from non-Latino white donors, 1.92% came from Asian
American donors, 4.79% from Black donors, and 2.26% from Latino
donors. Until now, there has been relatively little population-level evi-
dence of the enormous bias in the composition of campaign contribu-
tions. Given our discussion of theoretical expectations in Section I.B,
this racially skewed distribution has potentially powerful implications

94 Contributions (right panel) include all individual hard money contributions to

candidates for U.S. House, U.S. Senate, U.S. President, governor, and state legislator
(1980–2012). Member of Congress demographics are from the 113th Congress.
95 Katherine Schaeffer, Racial, Ethnic Diversity Increases Yet Again with the 117th
Congress, PEW RSCH. CTR. (Jan. 28, 2021), https://www.pewresearch.org/fact-tank/2021/01/
28/racial-ethnic-diversity-increases-yet-again-with-the-117th-congress [https://perma.cc/
9F73-F9K5].
588 NEW YORK UNIVERSITY LAW REVIEW [Vol. 97:566

for the exercise of minority political rights and minorities’ representa-

tion in government.96

FIGURE 3. POLITICAL PARTICIPATION RATES—VOTING AND

CONTRIBUTING97

In Figure 3 above, we further highlight the scale of the racial gap

in campaign finance, comparing voting and contributing. Figure 3 esti-
mates participation rates by race over time. The participation rate is
the percent of a racial group that engages in a form of participation—
voting or contributing money—in a given election cycle. The denomi-
nator for a participation rate is the number of people of each racial
group in the voting age public. Note that because donating money to
campaigns is a much less common activity than voting, the y-axis
scales differ for voting and donating.
The left panel of Figure 3 is a familiar graph of voter turnout
rates by racial group over time. Of note is the substantial increase in
African American voter turnout through the 1990s and 2000s, which
by 2008 surpasses the white turnout rate. Voter turnout among Asian,
Latino, and white Americans also increases slightly during this period.
Overall, the white-minority gap in turnout declines over these years,

96 See supra Section I.B.

97 Voter turnout rates are from the CPS. Voter Supplement. Donation rates, the
percent of each racial group that makes campaign contributions, are based on name and
geographic racial predictions of all donors to candidates for U.S. House, U.S. Senate, U.S.
President, governor, and state legislator, with census counts of voting age public as the
denominator. Turnout rate and donate rate are in percentage points [0, 100].
May 2022] FINANCIAL INCLUSION IN POLITICS 589

driven in part by increased Asian and Latino turnout, but mostly from
increased Black turnout.
By contrast, the right panel, which focuses on the campaign con-
tribution rate, shows a very different trend. In the right panel we see
all racial groups increase their contribution rates since the 1980s and
1990s, but at very different paces. The Asian, Black, and Latino con-
tribution rates increase somewhat; by 2012, more than 1 in 200 (0.5%)
Asian and Black American adults contributes to a campaign. But the
increased contribution rate among white Americans dwarfs all others.
The white contribution rate shows a staggering fourteen-fold increase
between 1988 and 2012.

FIGURE 4. PROPORTION OF INDIVIDUAL CONTRIBUTIONS BY RACE,

1980–201298

Our analysis of rates of participation in contributing shows

increased contributing from individuals of all races over time, but a
larger increase for white individuals. Here we present analysis that
shows more clearly the percent of contributions from each racial

98 Each year, white people comprise between eighty-nine and ninety-one percent of
individual contributions; other racial groups are severely under-represented among the
donor pool.
590 NEW YORK UNIVERSITY LAW REVIEW [Vol. 97:566

group by election year. Figure 4 demonstrates a mostly static trend

over time: Contributions from white donors comprise about ninety-
one percent of all individual contributions in all years from 1980
through 2012.

2. The Racial Composition of Money Across Election Types

Does the racial makeup of contributions vary for candidates run-

ning for different offices? Figure 5 suggests that the answer is mostly
no. There are some differences, such as lower Asian contributing to
gubernatorial than U.S. House races, and greater Latino contributing
to state lower house candidates than presidential candidates. But
overall, the differences are minor in context. The overall share of con-
tributions from donors of color is typically between nine and ten per-
cent for all of these offices. Like the overall racial distribution of
contributions, there is little change over time within these groups.99

FIGURE 5. LITTLE DIFFERENCE IN RACIAL COMPOSITION OF

MONEY BY TYPE OF ELECTION100

99 It is also notable that we do not observe an “Obama effect” on the share of Black
contributions. While in the data we see that the total amount from Black donors increases
in 2008 and 2012, the total amount from other racial groups increases as well. The “Obama
effect” on voting is clearer; Black voters became a larger share of the electorate in 2008
and 2012 than in other presidential elections in part due to the presence of Barack Obama
on the general election ballot. However, we find no evidence of this trend in contributions.
100 We observe similar racial distributions of contributions across election types.
May 2022] FINANCIAL INCLUSION IN POLITICS 591

This finding that the racial makeup of contributions does not vary
much by election again underscores the importance of the racial
wealth gap. Rather than social and political factors that might vary by
election type, such as media coverage, it appears that the racial distri-
bution of donors is shaped by structural factors like the wealth gap. In
the next Section, we turn to the racial distribution of contributions to
political organizations.

3. Underrepresentation in Contributions to Outside Groups

To this point we have focused on contributions to candidates.

However, a lot of money in campaigns comes from so-called “outside
groups.” Minority money is even less likely to appear in contributions
to outside groups. Nearly 93% of individual contributions to PACs
and SuperPACs in 2014 were from white donors. Only 2.5, 2.2, and
2.6% of contributions came from Asian, Black, and Latino donors,
respectively.

FIGURE 6. RACE AND CONTRIBUTIONS TO PACS AND

SUPERPACS101

101 Data are from 2014 contributions to political action committees. As with other
figures, the missing category here is white. Donations from white people comprise 92.7%
of individual contributions to PACs and SuperPACs.
592 NEW YORK UNIVERSITY LAW REVIEW [Vol. 97:566

This analysis shown in Figure 6 suggests that outside groups do

not substitute for racially unequal contributions to candidates. In fact,
they show greater racial inequality than traditional hard-money con-
tributions to candidates. Although the FEC data do not comprise a
complete record of all money given to SuperPACs (e.g., via 501(c)(4)
organizations), this evidence suggests that a deregulatory stance
toward contributions to groups is unhelpful for racial minorities.
This Section establishes that campaign contributions are a racially
unequal form of political participation. Campaign contributions in the
aggregate, as well as individual contributors themselves, are over-
whelmingly white—more racially homogenous than the U.S. electo-
rate or members of Congress. In contrast to the electorate, the racial
composition of money in politics has not changed substantially since
the 1980s and does not vary much by election type. In the next
Section, we provide additional analysis of the representational conse-
quences of racial inequality in campaign finance.

D. The Participation Gap Worsens Minority Representation

Campaign contributions are an important form of political partic-
ipation, but, as we established in the last Section, they are a racially
unequal one. In this Section, we present results from three analyses
that show that this racial inequality in contributions affects represen-
tation. First, we show that the racial composition of campaign contri-
butions is correlated with the racial composition of candidates who
run in U.S. House elections. Second, we show that public opinion on
major policy issues varies significantly across racial groups. Finally, we
show that the racial composition of contributions is associated with
ideological representation, with larger shares of Black or Latino
money producing more liberal congressional representation.

1. Campaign Finance Disparities and Political Selection

Expensive elections are an obstacle for Black and Latino candi-
dates. Specifically, more money in congressional elections reduces the
likelihood that Black and, to a lesser extent, Latino candidates are
successfully able to become viable. To this end, we estimate a linear
probability model using ordinary least squares (OLS) regressions of
the following form:
1(Candidate = Black/White)dt = b1 TotalContributionsdt + gXdt + dd
+ dt + edt
In this empirical model, TotalContributions is the total volume of
campaign contributions given to congressional candidates in
Democratic primary elections, in millions of dollars. We focus on
May 2022] FINANCIAL INCLUSION IN POLITICS 593

Democratic primaries, since the vast majority of minority congres-

sional candidates seek the nomination of the Democratic rather than
the Republican Party.102 1(Candidate = Black/White) is an indicator
variable that tells us whether the candidate who emerges from the
primary (and thus contests in the general election) is either white or
Black.
In this simple associational regression, b1 in essence tells us the
association between the level of total spending at the stage of the elec-
tion where a candidate is chosen (the primary election stage), and the
likelihood that the candidate chosen is a racial minority. X indicates
various control variables that may be correlated with the likelihood
that minority candidates run, or are of a particular quality (i.e., factors
that affect political selection). Those control variables include the
fraction of union workers, the fraction of voters over age sixty-five,
the fraction of unemployed workers, the fraction of public sector
workers, and the fraction of blue-collar workers in a given district. dd
are district fixed effects and dt are cycle fixed effects to account for
time-invariant place characteristics as well as time-varying nationwide
confounders, respectively.

TABLE 1. TOTAL PRIMARY CONTRIBUTIONS ARE ASSOCIATED WITH

FEWER MINORITY CANDIDATES103
Race Black White
District District
Controls None District None District
& Cycle & Cycle
Change in
Likelihood per -0.0505* -0.0382* -0.0281* 0.0519* 0.0430+ 0.0283+
Million Dollars
Standard Error 0.0176 0.0173 0.0108 0.0237 0.0237 0.0161
N 6399 6399 6399 6399 6399 6399
2
R 0.0117 0.248 0.592 0.0289 0.176 0.551

102 See Ebonya Washington, How Black Candidates Affect Voter Turnout, 121 Q.J.
ECON. 973, 981 (2006) (noting that Black Americans vote for the Democratic candidate
seventy to ninety percent of the time); see also Sarah Bryner, Racial and Gender Diversity
in the 117th Congress, OPEN SECRETS (June 30, 2020), https://www.opensecrets.org/news/
reports/gender-and-race-2020 [https://perma.cc/G52B-9BVM] (finding that 83 of 116
BIPOC congressional candidates in the 2020 election ran for the Democratic Party, while
only 33 of 116 BIPOC congressional candidates ran for the Republican Party in the same
election).
103 This table presents results from six separate regressions, one per column. In short,
the table summarizes the association between the level of total campaign contributions in a
primary election and the likelihood of a minority candidate emerging as the general
election candidate. Each column reports estimates of a linear probability model relating
594 NEW YORK UNIVERSITY LAW REVIEW [Vol. 97:566

In essence, this empirical test summarizes the relationship

between total money spent in the party candidate selection phase, and
the likelihood that the candidate is a minority. As we see in Table 1,
large sums of campaign contributions are strongly negatively associ-
ated with the likelihood that the Democratic Party’s chosen congres-
sional candidate will be Black. Our baseline estimate of this
association is presented in column 1, and the punchline is clear: For
every additional million dollars donated in a primary election contest,
the likelihood that candidate is a Black American is reduced by five
percentage points. This result is statistically significant at the one per-
cent level. In column 2, we observe that this result is quite robust—the
story is largely the same when we control for both district-level con-
trols. Finally, in our most “demanding” specification, presented in
column 3, we control fixed unobserved differences across congres-
sional districts (within a given election cycle) using district and cycle
fixed effects. Even with this more demanding model, the story is the
same: More money is associated with a lower likelihood of having a
Black candidate compete for congressional office.
In columns 4–6, we repeat the exercise for white candidates. As
one might expect, the results are largely symmetric—greater levels of
campaign contributions are strongly associated with the increased
likelihood of white candidates winning Democratic primaries.
A potential confounder for the finding that greater spending
leads to a lower likelihood that a Black candidate is elected is the fact
that Black communities tend to be poorer than white communities, as
well as geographically concentrated. Indeed, residential segregation is
one of the reasons that majority-minority districts are one of the pri-
mary remedies to Voting Rights Act section 2 vote dilution violations.
As such, due to racial polarization, heavily minority districts may tend
to nominate (and elect) minority candidates given the structure of
these districts. These heavily Black districts are relatively poor and
also extremely safe for Black candidates by design. In short, districting
to comply with section 2 may tend to reduce the total contributions
that Black candidates receive on average.
We believe that districting that leads to poorer districts is unlikely
to be the only explanation for our results for a few reasons. First, the
inclusion of district-redistricting cycle fixed effects accounts for fixed
differences in the amount of money that candidates are able to raise
within a district. Second, and to address this concern head-on, we drop

the level of primary campaign contributions to an indicator variable for whether the
primary winner was a particular race (indicated in the first row). An observation is a
district-year. Standard errors are in parentheses and are clustered by state. + and * denote
statistical significance at the ten and five percent levels, respectively.
May 2022] FINANCIAL INCLUSION IN POLITICS 595

majority-minority districts from our analysis in Table 2 below. As we

can see, the results are qualitatively unchanged.

TABLE 2. TOTAL PRIMARY CONTRIBUTIONS ARE ASSOCIATED WITH

FEWER MINORITY CANDIDATES, EXCLUDING MAJORITY-
MINORITY DISTRICTS104

Race Black White

District District
Controls None District None District
& Cycle & Cycle
Change in
Likelihood per -0.0354* -0.0367* -0.0288* 0.0364 0.0405+ 0.0290+
Million Dollars
Standard Error 0.0165 0.0171 0.0111 0.0234 0.0235 0.0164
N 6068 6068 6047 6068 6068 6047
2
R 0.0123 0.129 0.533 0.0285 0.0948 0.511

2. Campaign Finance Disparities and Substantive Representation

Racial minorities cannot count on white donors for policy repre-

sentation because there are large gaps in policy opinions across racial
groups. To show this, Figure 7 presents support for significant congres-
sional bills by racial group. Of note, the difference in policy support
from Black and white Americans is statistically significant (p < 0.05)
on every issue. Christopher Elmendorf and Douglas Spencer also
show that large racial differences in opinion exist within congressional
districts.105

104 This table presents results from six separate regressions, one per column. In short,
the table summarizes the association between the level of total campaign contributions in a
primary election and the likelihood of a minority candidate emerging as the general
election candidate. Each column reports estimates of a linear probability model relating
the level of primary campaign contributions to an indicator variable for whether the
primary winner was a particular race (indicated in the first row). An observation is a
district-year. Standard errors are in parentheses and are clustered by state. + and * denote
statistical significance at the one and five percent levels, respectively.
105 See Christopher S. Elmendorf & Douglas M. Spencer, Administering Section 2 of the
Voting Rights Act After Shelby County, 115 COLUM. L. REV. 2143, 2209–10 (2015)
(showing significant gaps in ideology between racial groups, particularly between white
and minority citizens).
596 NEW YORK UNIVERSITY LAW REVIEW [Vol. 97:566

FIGURE 7. SIGNIFICANT DIFFERENCES IN PUBLIC OPINION BY

RACE106

Finally, we investigate the effects of the racial composition of

contributions on the behavior of members of Congress. The results of
cross-sectional and difference-in-differences analyses suggest that
elections with greater shares of Black contributions lead to more lib-
eral representation in Congress, which, recalling our analysis of public
opinion, is more congruent with the political attitudes of Black con-
stituents. To measure legislative ideology in Congress, we use DW-
NOMINATE scores, which are based on statistical models of legisla-

106 Policy attitudes vary significantly by race. Plot shows average support for policies by
racial group, along with ninety-five percent confidence intervals. Government job
guarantee, government healthcare, and expanded government services questions are from
the American National Election Study (1992–2016). AM. NAT’L ELECTION STUD., https://
www.electionstudies.org [https://perma.cc/438D-79BG]. All other questions are from the
Cooperative Election Study (2006–2014). Cooperative Election Study, HARV. UNIV. https://
cces.gov.harvard.edu/data [https://perma.cc/N4GW-LVTU].
May 2022] FINANCIAL INCLUSION IN POLITICS 597

tors’ roll-call votes (higher scores indicate greater conservatism, and

lower scores greater liberalism).107

TABLE 3.1. GREATER SHARE OF BLACK CONTRIBUTIONS IN

PRIMARY ELECTIONS IS ASSOCIATED WITH MORE
LIBERAL REPRESENTATION108
District &
Controls None District
Cycle FE
Change in ideology per unit increase in
-1.515* -0.463+ -0.405+
Black contributions in primary elections
Standard Error 0.251 0.236 0.241
N 1866 1866 1839
2
R 0.057 0.773 0.775

TABLE 3.2. GREATER SHARE OF BLACK CONTRIBUTIONS IN

GENERAL ELECTIONS IS ASSOCIATED WITH MORE
LIBERAL REPRESENTATION
District &
Controls None District
Cycle FE
Change in ideology per unit increase in
-1.334* -0.365+ -0.315+
Black contributions in general elections
Standard Error 0.209 0.189 0.183
N 1856 1856 1829
2
R 0.054 0.773 0.775
We estimate that a ten percentage-point increase in Black contri-
butions increases the liberalism of the congressional representative by
between three and fifteen percent of a standard deviation, a substan-
tial amount.109 To give a sense of the magnitude, this is about eighteen
percent of the gap between the median Democratic and median

107 See Jeffrey B. Lewis, Keith Poole, Howard Rosenthal, Adam Boche, Aaron Rudkin
& Luke Sonnet, Voteview: Congressional Roll-Call Votes Database, VOTEVIEW, https://
voteview.com [https://perma.cc/D8ZB-SCT8] (creating a database of congressional
member ideology based on DW-NOMINATE scores).
108 As the share of Black contributions increases, the liberalism of elected officials
increases (DW-NOMINATE score is more negative). As we explain in the text, these are
large differences. + p < 0.10, * p < 0.05.
109 In Tables 3.1 and 3.2, the coefficient represents a one-unit shift in the proportion of
Black contributions, i.e., the effect of moving from 0% Black contributions to 100%. In our
discussion here, we write in terms of ten percentage-point changes in Black contributions,
which means dividing the coefficients in Table 3.1 and 3.2 by ten.
598 NEW YORK UNIVERSITY LAW REVIEW [Vol. 97:566

Republican U.S. Representative in the 116th Congress.110 More spe-

cifically, the difference-in-differences results in columns 2 and 3 in
Table 3 show that, all else equal, a ten percentage-point increase in
Black contribution share in primary elections is associated with an
increase in the liberalism of the representative by between four and
five percent of a standard deviation. We find similar results for general
elections, with effects ranging between three and thirteen percent of a
standard deviation more liberal for each ten percentage-point increase
in Black contributions. Columns 5 and 6 of Table 3 show that a ten
percentage-point increase in Black contribution share in the general
election period increases the representative’s liberalism by between
three and four percent of a standard deviation.
This Section presented evidence that racial minorities are under-
represented in campaign finance. The racial gaps in contributions exist
in every kind of electoral race, and the gaps have not changed appreci-
ably since the 1980s. While the ranks of the American electorate and
elected officials have diversified significantly, campaign contributions
remain white-dominated. Social science evidence suggests that cam-
paign contributions influence political outcomes, so this racial ine-
quality in contributions is likely to produce racial inequality in politics
more broadly.
Our subsequent analyses showed more specifically the relation-
ship between the racial contours of campaign finance and representa-
tion. More expensive elections predict fewer racial minority
candidates, limiting descriptive representation for Americans of color.
However, where contributions from Black donors are higher, we
observe more liberal congressional representation, which is more in
line with the political attitudes of Black Americans. These findings
suggest a role for campaign finance policy and litigation in addressing
issues of representation and racial equity in the political system.
In the next Part, we explain how the Court’s aggressive interpre-
tation of the First Amendment has exacerbated the problems we have
described here. We then discuss solutions, both in terms of policies
elected officials and reformers can create today, and court challenges
that litigants could bring to help hurry them along.

110 See Jeffrey B. Lewis, Keith Poole, Howard Rosenthal, Adam Boche, Aaron Rudkin
& Luke Sonnet, Parties, VOTEVIEW, https://voteview.com/parties/all [https://perma.cc/
JYX3-CZW4]; see also NOLAN MCCARTY, KEITH T. POOLE & HOWARD ROSENTHAL,
POLARIZED AMERICA: THE DANCE OF IDEOLOGY AND UNEQUAL RICHES 33 (2016)
(explaining that even senators from the same party may have sharply different
NOMINATE scores).
May 2022] FINANCIAL INCLUSION IN POLITICS 599

II
THE PLUTOCRATIC IMPLICATIONS OF CAMPAIGN FINANCE
JURISPRUDENCE
So far, we have argued that the racial wealth gap has led to racial
inequality in campaign contributing, which, in turn, biases political
representation against racial minorities. In this Part, we argue that the
Court’s conceptualization of campaign spending as “speech” has con-
tributed to this representational bias against racial minorities. And we
highlight two proposals that the Court may use to course correct: the
alignment interest and the McCutcheon majority’s right to participate.

A. Narrow “Compelling” Government Interests

Campaign financing has only been “constitutionalized” since
1976, the year that Buckley v. Valeo upended the Federal Elections
Campaign Act (FECA). FECA is the comprehensive statute passed
by Congress in the wake of the Watergate scandal to rein in political
spending and facilitate disclosure and enforcement.111 The Buckley
Court, in a lengthy per curiam opinion, ruled that limits on political
expenditures violated donors’ right to free speech under the First
Amendment and that political contributions should be analyzed as
First Amendment protected association.112 In the intervening forty-
five years, plaintiffs have used the Buckley rationale to convince the
courts to find many campaign finance regulations unconstitutional.
These include regulations facilitating public financing,113 requirements
that corporations spend from segregated funds rather than directly
from their treasuries,114 limits on independent expenditures gener-
ally115 and by corporations,116 aggregate contribution limits for those
able to spend more than $123,200 on federal campaigns,117 and others.

111 Trevor Potter, Money, Politics, and the Crippling of the FEC: A Symposium on the
Federal Election Commission’s Arguable Inability to Effectively Regulate Money in
American Elections, 69 ADMIN. L. REV. 447, 452 (2017) (noting that the FECA created the
FEC as an independent agency in the wake of Watergate in charge of administration and
enforcement of campaign funding).
112 Buckley v. Valeo, 424 U.S. 1, 14–23 (1976) (per curiam).
113 See Ariz. Free Enter. Club’s Freedom Club PAC v. Bennett, 564 U.S. 721, 727–28
(2011) (finding that regulations on public financing burden protected political speech
under the First Amendment); Davis v. FEC, 554 U.S. 724, 743–44 (2008) (finding that
campaign finance regulations aimed at balancing contributions received by competing
candidates burden the First Amendment standard under Buckley).
114 See Citizens United v. FEC, 558 U.S. 310, 321 (2010).
115 See Buckley, 424 U.S. at 143 (finding limitations on campaign and independent
expenditures by individuals “constitutionally infirm”).
116 See SpeechNow.org v. FEC, 599 F.3d 686, 693–94 (D.C. Cir. 2010) (applying the
Buckley standard to limits on corporate political contributions).
117 See McCutcheon v. FEC, 572 U.S. 185, 194 (2014) (plurality opinion).
600 NEW YORK UNIVERSITY LAW REVIEW [Vol. 97:566

The Court has regularly—and explicitly—rejected “leveling the

playing field” as a sufficiently compelling government interest to limit
the “speech” of donors or candidates.118 But of course, deregulation
facilitates increased inequality for all the reasons we have explained as
well as the reality of who exactly benefits from deregulation. Cam-
paign contributors who give over $200 in federal races (the disclosure
threshold) comprise less than one percent of the U.S. population.119
Only 0.05% of U.S. adults—that is 1 in 2,000—contribute the max-
imum to any federal candidate. The contributors advantaged by these
deregulatory decisions—those able to donate through corporate
forms, or in excess of statutory maximums to outside groups, or con-
tribute the maximum to multiple candidates—are far rarer than the
one percent who donate above the $200 disclosure threshold. The
Buckley decision, and all subsequent decisions deregulating campaign
finance, therefore, takes the lid off of the amount of “speech” and
“associating” that people can do in our elections, enabling the wealthy
to “speak” and “associate” as much as they choose to given their

118 See Buckley, 424 U.S. at 17–18 (noting that a government interest in “equalizing the
relative ability of all voters to effect electoral outcomes” is not sufficient to uphold the
expenditure limitations at issue); McCutcheon, 572 U.S. at 207 (plurality opinion) (“We
have consistently rejected attempts to suppress campaign speech based on other legislative
objectives. No matter how desirable it may seem, it is not an acceptable governmental
objective to ‘level the playing field’ or to ‘level electoral opportunities,’ or to ‘equaliz[e]
the financial resources of candidates.’” (citations omitted) (first quoting Bennett, 564 U.S.
at 748–50; then quoting Davis, 564 U.S. at 741–42; and then quoting Buckley, 424 U.S. at
56)); see also Bennett, 564 U.S. at 749–50 (“We have repeatedly rejected . . . a compelling
state interest in ‘leveling the playing field’ that can justify undue burdens on political
speech. . . . ‘Leveling electoral opportunities means making and implementing judgments
about which strengths should . . . contribute to the outcome of an election,’—a dangerous
enterprise . . . that cannot justify burdening protected speech.” (citations omitted) (quoting
Davis, 554 U.S. at 749–50)).
119 The number is slightly higher when we take into account contributors below $200
(the disclosure threshold), who we can observe when they donate via intermediaries like
ActBlue or RedWin. The closest analysis of these “hidden donors” we have is R. Michael
Alvarez, Jonathan N. Katz & Seo-young Silvia Kim, Hidden Donors: The Censoring
Problem in U.S. Federal Campaign Finance Data, 19 ELECTION L.J. 1, 5 (2020), which
measures not donors but the percent of money received that is not itemized (because it is
below $200). In recent elections, unitemized contributions constituted around twenty-two
percent of contributions to House Democrats and fourteen percent to House Republicans.
See supra Table 1.
May 2022] FINANCIAL INCLUSION IN POLITICS 601

resources.120 As our analysis has found, these donors are not only
wealthier; they are much more likely to be white.121
A jurisprudence that privileges (mega)donors over nondonors
would not matter if donations had no effect on (1) who gets elected
(the selectorate); (2) who has access to elected officials; and (3) whose
preferred policies are implemented (i.e., representation). Privileging
donors over nondonors would also not matter if both groups’ political
interests and desires were the same. Unfortunately, none of this is
true.122
The Court has had little to say about the selectorate or represen-
tation. However, it has repeatedly refused to recognize the govern-
ment’s interest in preventing unequal access to elected officials as
sufficiently compelling to uphold campaign finance regulations. In its
two major statements on campaign finance and corruption in recent
years—Citizens United v. FEC and McCutcheon v. FEC—the Court
has emphasized that “ingratiation and access . . . are not corruption,”
so the Court will reject regulations aimed at limiting ingratiation or
access.123

120 See, e.g., Raskin & Bonifaz, supra note 2, at 294 (noting that citizens earning more
than $125,000 a year (2.7% of the population) are ten times more likely to make
contributions than those making under $15,000 a year (17.7% of the population)). That
remains true today, and as the rich get richer and inequality in this country widens, the gap
between the donor and nondonor classes has widened as well. Only about 11% of
American adults have donated to a political campaign in recent decades, and only 0.5%
have contributed $200 or more. Yet 33% of American families have no money they think
of as savings, and the Federal Reserve has found that between 39–50% of Americans
would not be able to cover a $400 emergency expense using cash or its equivalent. BD. OF
GOVERNORS OF THE FED. RSRV. SYS., REPORT ON THE ECONOMIC WELL-BEING OF U.S.
HOUSEHOLDS IN 2018, at 2 (2019), https://www.federalreserve.gov/publications/2019-
economic-well-being-of-us-households-in-2018-dealing-with-unexpected-expenses.htm
[https://perma.cc/LJW8-RHBT]; see also Pew Finds American Families Ill-Equipped for
Financial Emergencies, PEW CHARITABLE TRUSTS (Nov. 18, 2015), https://
www.pewtrusts.org/en/about/news-room/press-releases-and-statements/2015/11/18/pew-
finds-american-families-ill-equipped-for-financial-emergencies [https://perma.cc/2TYJ-
FSA3] (looking as well at racial disparities in savings, finding that on average “white
household[s] ha[ve] . . . one month’s income in liquid savings, compared with . . . 12 days
for . . . Latino household[s] and . . . five days for . . . African-American household[s]. . . .
[25%] of black households would have less than $5 if they liquidated . . . their financial
assets, compared with $199 and $3,000 for . . . [25%] of Latino and white households”). See
also Adam Hughes, 5 Facts About U.S. Political Donations, PEW RSCH. CTR. (May 17,
2017), https://www.pewresearch.org/fact-tank/2017/05/17/5-facts-about-u-s-political-
donations [https://perma.cc/P2VV-TURC] (asserting that higher-income Americans are
more likely to donate).
121 See supra Sections I.C–D.
122 See supra Sections I.C–D.
123 Citizens United v. FEC, 558 U.S. 310, 360 (2010); McCutcheon, 572 U.S. at 192
(plurality opinion) (quoting Citizens United, 558 U.S. at 360). Of course, several scholars
disagree with the belief that ingratiation and unequal access do not corrupt. See, e.g.,
Sullivan, supra note 2, at 679 (arguing that corruption “is really a variant on the problem of
602 NEW YORK UNIVERSITY LAW REVIEW [Vol. 97:566

It is worth highlighting an error in the Court’s reasoning

regarding access and ingratiation before moving on with our argu-
ment. The Court claims that ingratiation and access “embody a central
feature of democracy—that constituents support candidates who
share their beliefs and interests, and candidates who are elected can
be expected to be responsive to those concerns.”124 But it is not con-
stituents who financially support most candidates. It is donors. Con-
stituents live in one’s district and can vote in their elections, whereas
donors are not bound by geography.125 The Court assumes more
overlap between constituents and donors than exists in our politics,
especially at the national level, where the median candidate for the
House of Representatives received only twenty-nine percent of her
funding from inside the district in 2018.126 This distinction matters,
because donors get more access to elected officials than nondonor
constituents, as we explained in Part I.
Returning to our explanation on the narrowing of the Court’s
jurisprudence, we arrive at the sole acceptable interest that govern-
ments can serve with campaign finance regulations: actual bribery.
“Any regulation must instead target what we have called ‘quid pro
quo’ corruption or its appearance. . . . [A] direct exchange of an offi-
cial act for money.”127 Of course, establishing that a quid pro quo has
occurred is next to impossible.128 Elected officials have gotten away

political equality: unequal outlays of political money create inequality in political

representation”); Richard L. Hasen, Is “Dependence Corruption” Distinct from a Political
Equality Argument for Campaign Finance Laws? A Reply to Professor Lessig, 12
ELECTION L.J. 305 (2013) (arguing that inequality of political input and political
opportunity can corrupt).
124 McCutcheon, 572 U.S. at 192 (plurality opinion).
125 See generally David Fontana, The Geography of Campaign Finance Law, 90 S. CAL.
L. REV. 1247 (2017) (explaining the geographical concentration of donors and the
implications of this concentration for campaign finance law).
126 This is our analysis, using data from OpenSecrets.org, available here: In-District vs.
Out-of-District, OPEN SECRETS, https://www.opensecrets.org/overview/district.php [https://
perma.cc/Q7CK-7FWB]. As we explain in Part III, this has important implications for
candidates of color, who tend to get more of their funding from out-of-district, when
compared to their white counterparts. See infra Part III.
127 McCutcheon, 572 U.S. at 192 (plurality opinion) (quoting Citizens United, 558 U.S. at
359); see also Douglas M. Spencer & Alexander G. Theodoridis, “Appearance of
Corruption”: Linking Public Opinion and Campaign Finance Reform, 19 ELECTION L.J.
510, 510 (2020) (noting that Supreme Court jurisprudence requires regulations focus only
on quid pro quo corruption). Note that scholars argue that quid pro quo corruption is
problematic specifically because of equality concerns, despite the Court’s insistence that
they are not considering equality in their First Amendment jurisprudence. See Yasmin
Dawood, Classifying Corruption, 9 DUKE J. CONST. L. & PUB. POL’Y 103, 107–10 (2014).
128 See Ciara Torres-Spelliscy, Deregulating Corruption, 13 HARV. L. & POL’Y REV. 471,
496–99 (2019) (discussing the difficulty in establishing quid pro quo corruption as a result
of the Court’s narrowing of what is quid pro quo).
May 2022] FINANCIAL INCLUSION IN POLITICS 603

with egregious behavior in recent years, because prosecutors have not

been able to establish one of the elements of quid pro quo corruption
(bribery).129 Because the Court says that combatting quid pro quo
corruption is the only relevant interest for abridging campaign finance
activities130 and because so few activities connected to campaign
finance can be narrowly described as quid pro quo corruption, the
Court allows few campaign finance regulations to survive.131
Scholars have traced two additional interests in the campaign
finance jurisprudence, which might suffice to help a government
defend regulations aimed at improving alignment or helping constitu-
ents engage their right to participate. The alignment interest fits
squarely in the First Amendment jurisprudence, and we turn to it
next. The right to participate straddles the First Amendment,
Fourteenth, and Fifteenth Amendments, as well as the Voting Rights
Act. We conclude this Part by discussing participation as a bridge to
more equality-friendly doctrines.

B. Taking Alignment and Participation Seriously

First, governments could defend campaign finance regulations
that provide an alignment benefit, or which better align the policy
preferences of voters and the policy outputs of government.132 As
Professor Nicholas Stephanopoulos argues, the government should be
able to defend regulation in the service of (1) preference alignment,
between the median voter in a constituency and the preferences of her
representative, and (2) outcome alignment between the views of the
median voter of the constituency and the policy outcomes from the
legislature.133 This alignment interest is distinct from the anticorrup-
tion interest that the court most often uses to uphold regulations.
Importantly, it is also distinct from the equality interest the Court
rejects.134 And, crucially, it can be defended by governments as a com-
pelling interest under the delegate model that we describe in Part I.
Our findings in this Article provide a new dimension of the align-
ment interest that governments may use to defend certain campaign

129 See, e.g., McDonnell v. United States, 136 S. Ct. 2355, 2375 (2016) (holding that the
requisite “official act” to establish bribery is read narrowly, and remanding for
determination of whether the defendant’s conduct fell within this narrow standard).
130 “Any regulation must . . . target what we have called ‘quid pro quo’ corruption or its
appearance.” McCutcheon v. FEC, 572 U.S. 185, 192 (2014).
131 Torres-Spelliscy, supra note 128, at 496–99.
132 See generally Stephanopoulos, supra note 87 (arguing for campaign finance reform
along an alignment theory promoting more unity between voter preferences and policy
decisions by government).
133 Id. at 1428.
134 Id. at 1455, 1463.
604 NEW YORK UNIVERSITY LAW REVIEW [Vol. 97:566

finance regulations. As our country diversifies, the median voter is

increasingly likely to be Black, Latino, or Asian American. Yet their
representation and the policies that result from it are more likely to
favor white people.
Another potential avenue for reformers is to focus on a right to
participation. The McCutcheon plurality, which writes so narrowly
about corruption, reframes campaign contributions as one of many
forms of participation, opening the door for litigants to demand equal
rights to political participation.135 “There is no right more basic in our
democracy than the right to participate in electing our political
leaders,” the Chief Justice wrote for himself and the three Justices
who signed on to the plurality opinion.136 He continued, “[c]itizens
can exercise that right in a variety of ways: They can run for office
themselves, vote, urge others to vote for a particular candidate, volun-
teer to work on a campaign, and contribute to a candidate’s cam-
paign.”137 Professor Yasmin Dawood rightly says that here, the Court
is acknowledging a “common matrix of participation” in campaign
financing and voting.138 We add to this argument that participation in
campaign finance is currently unequal along the very racial lines that
concerned the drafters of the Equal Protection Clause, the Fifteenth
Amendment, and the Voting Rights Act.
The Court has been deregulating campaign finance in the name
of the First Amendment, but with effects that entrench racial ine-
quality. Instead, the Court should use our empirical findings as a
jumping off point for a new jurisprudence that takes seriously the
alignment interest and the right to participate.

135 McCutcheon v. FEC, 572 U.S. 185, 191 (2014) (plurality opinion); see also Yablon,
supra note 17, at 669. Conversely, they may be shutting the door on equality-based
arguments in the voting rights context. See Yasmin Dawood, Democracy Divided:
Campaign Finance Regulation and the Right to Vote, 89 N.Y.U. L. REV. 17, 25 (2014).
136 McCutcheon, 572 U.S. at 191 (plurality opinion).
137 Id. Justice Thomas concurred without commenting on this dictum, saying he would
have struck down individual contribution limits as well. Id. at 231–32 (Thomas, J.,
concurring).
138 Dawood, supra note 135, at 17–18; see also Yablon, supra note 17, at 655. In contrast
to our argument that the Court leaves the door open to voting rights equality concerns
influencing campaign finance, Dawood rightly points out the flip side of the Court’s
language in McCutcheon: the danger of allowing the First Amendment to make incursions
into voting rights. Dawood, supra note 135, at 26 (“Now that the First Amendment also
apparently protects the right of citizens to choose their representatives, political equality is
under even greater threat.”).
May 2022] FINANCIAL INCLUSION IN POLITICS 605

III
CAMPAIGN FINANCE INEQUALITIES THROUGH THE LENS
OF VOTING RIGHTS

We have demonstrated the racial bias in the current campaign

finance system, including in (1) who donates, (2) who can fundraise
enough to mount a viable campaign, (3) who gets access to elected
officials, and (4) whose preferred policies are implemented by elected
officials. Political inequality for racial minorities leads to policy
regimes that maintain and expand racial wealth inequality—making it
more difficult for racial minorities to participate in politics, com-
pleting the vicious cycle. At every step in the chain, white people, in
their status as donors, come out ahead of people of color. And while
America becomes more diverse, the inequality expands and deepens.
When we put our cynicism aside, it is hard to fathom a court that
would receive evidence that indicates (1) campaign donors are the
“selectorate,” receiving better access and better representation, and
(2) campaign donors are overwhelmingly white, and yet limit its anal-
ysis of a challenged campaign finance system to the First Amendment
framework.
There are two levels at which litigants can challenge these dispari-
ties. First, they arguably present constitutional violations, either of the
Fourteenth Amendment’s Equal Protection Clause or of the Fifteenth
Amendment. Alternatively, though only slightly more likely to bear
fruit, litigants can challenge racial inequality in campaign finance as a
violation of the Voting Rights Act. Unfortunately, as other scholars
have noted,139 the current doctrinal landscape leaves little hope that
courts will expand the conception of the right to vote to include racial
inequality within campaign finance—though to be sure, we and
others140 believe there are reasons to adopt such a “right to partici-
pate” beyond McCutcheon. We thus close our discussion with a more
modest approach for incorporating evidence of racial disparities in
either contributions behavior or access to campaign finance: as a
factor to consider in the “totality of circumstances” framework under
section 2 of the VRA.

139 See, e.g., Joshua S. Sellers, Election Law and White Identity Politics, 87 FORDHAM L.
REV. 1515 (2019) (noting the Court’s disinterest in considering the racial implications of
politics).
140 See, e.g., Yablon, supra note 17, at 691–92 (arguing that McCutcheon leaves a
“promising path forward” for the right to participate). Dawood points out that the
McCutcheon majority’s framing of the right to participate may instead leave the door open
for the First Amendment to make conceptual inroads into voting rights. See Dawood,
supra note 135, at 25–27.
606 NEW YORK UNIVERSITY LAW REVIEW [Vol. 97:566

A. Racial Inequality in Campaign Financing and the Constitution

1. Right to Vote Harms
The Equal Protection Clause under the Fourteenth Amendment
guarantees equal protection under the law.141 The Court has long rec-
ognized that the definition of equality evolves over time, and the
clause is not “shackled to the political theory of a particular era.”142
For purposes of our argument, the requirements of the Fifteenth
Amendment are identical to the requirements under the Fourteenth
Amendment, and so we analyze them together.143
The Court has struck down, as equal protection violations, laws
that erect barriers to the act of voting, that restrict would-be candi-
dates’ participation, and that reduce the choices that voters can make.
In Harper v. Virginia State Board of Elections, the Court struck down
Virginia’s poll tax, saying, “a State violates the Equal Protection
Clause of the Fourteenth Amendment whenever it makes the afflu-
ence of the voter or payment of any fee an electoral standard.”144
While Harper was focused on voters, the Court later applied the same
reasoning to help increase equality among candidates by striking high
candidate filing fees in Texas primaries, in Bullock v. Carter.145 The
Court noted that reducing the impact of wealth inequality on candi-
date ballot access increased equality among candidates as well as the
amount of choice among candidates that voters had in elections.146
The concentration of an ethnic majority’s political power through
the unequal distribution of money and wealth also raises similar issues
to mid-century apportionment cases of the 1960s and 1970s, as a few
other scholars have noted.147 These cases concerned the division of
power among citizens. The touchstone constitutional vote dilution
case is Reynolds v. Sims,148 in which the Supreme Court generally rec-

141 U.S. CONST. amend. XIV, § 1.

142 Harper v. Va. State Bd. of Elections, 383 U.S. 663, 669 (1966).
143 See generally City of Mobile v. Bolden, 446 U.S. 55 (1980) (discussing whether at-
large elections discriminated against African Americans in violation of the Fourteenth and
Fifteenth Amendments).
144 Harper, 383 U.S. at 666.
145 405 U.S. 134, 149 (1972).
146 Id. at 143–44.
147 See, e.g., Mark C. Alexander, Money in Political Campaigns and Modern Vote
Dilution, 23 MINN. J.L. & INEQ. 239, 286 (2005) (discussing how politicians rely on wealthy
contributors to support their campaigns, keeping influence increasingly in the hands of a
smaller number of individuals).
148 377 U.S. 533, 557–58 (1964) (“How . . . can one person be given twice or 10 times the
voting power of another person in a statewide election merely because he lives in a rural
area or because he lives in the smallest rural county? . . . [A]ll who participate in the
election are to have an equal vote . . . .” (quoting Gray v. Sanders, 372 U.S. 368, 379–80
(1963))); see Guy-Uriel E. Charles & Luis Fuentes-Rohwer, Reynolds Reconsidered, 67
May 2022] FINANCIAL INCLUSION IN POLITICS 607

ognized that vote dilution is an actionable wrong under the Equal

Protection Clause.149 Electoral schemes that gave “citizens in rural
regions” concentrated power “99 times the strength of urban
dwellers” violated the Constitution’s fundamental guarantee of “an
equally weighted vote.”150 The Fourteenth Amendment guarantees
that all persons have equal opportunity to participate effectively,
“without regard to race, sex, economic status, or place of
residence.”151
The outsized electoral influence of (overwhelmingly white)
wealthy donors has downstream electoral effects similar to unfairly
designed legislative districts that render minority votes meaningless.152
In winner-take-all elections, not every minority group can be afforded
an opportunity to win in every election. But, just as the Supreme
Court has decided there is something intuitively problematic about
“electoral arrangements that systematically deprive out-groups of any
such opportunity to elect candidates [by] a simple re-drawing of [dis-
trict] lines,”153 there is something problematic about electoral systems
that deprive minorities of representation because of financial prereq-
uisites that functionally exclude them from being able to meaningfully
contest elections.
During the heyday of racial vote dilution litigation, courts
acknowledged the financial barriers to political success that minorities
faced—a fact that we have seen given little attention. One of the high-
water mark cases of the constitutional vote dilution era, and the broad
protection of minority political voice in all its forms, was White v.
Regester.154 In White, the Supreme Court ruled that Texas’s urban
voting district in Bexar County, which covered more than one thou-
sand square miles and included nearly one million people, was uncon-
stitutional because it diluted the Mexican American vote.155 In

ALA. L. REV. 485, 520 (2015) (suggesting that the Reynolds Court “ensured that white
suburban majorities enjoyed the right to govern that was their due”).
149 Reynolds, 377 U.S. at 565–66.
150 Alexander, supra note 147, at 242 (noting counties would be weighted by units not
population giving greater influence to residents of rural counties); id. at 242 n.33 (quoting
Lucas v. Forty-Fourth Gen. Assembly of Colo., 377 U.S. 713, 736 (1964)).
151 Reynolds, 377 U.S. at 560–61; Garza v. County of Los Angeles, 918 F.2d 763, 774
(9th Cir. 1990). In other words, a government must represent all its citizens.
152 See Alexander, supra note 147, at 286.
153 Dale Ho, Minority Vote Dilution in the Age of Obama, 47 U. RICH. L. REV. 1041,
1049 (2013).
154 412 U.S. 755, 759 (1973) (challenging the redistricting plan on the grounds that it
created “impermissible deviations from population equality,” and that the multimember
districts it created impermissibly diluted minority voting power).
155 Id. at 769 (holding that the county’s Mexican Americans were “effectively removed
from the political process” in violation of the Fourteenth Amendment).
608 NEW YORK UNIVERSITY LAW REVIEW [Vol. 97:566

striking down the Texas state districting scheme, though, the Court did
not focus on one aspect of political participation, such as voting.
Instead, the Court acknowledged that “economic realities of the
[minority] community” prevented them from “effective participation
in political life.”156 The Constitution thus required that Texas’s elec-
toral structure “bring the [minority] community into the full stream of
political life of the county and State by encouraging their further
registration, voting, and other political activities.”157 The Supreme
Court thus spoke in general terms about Latinos’ exclusion from the
political process in Texas.
While the financial disadvantages that minorities face in cam-
paigns is rarely discussed in voting rights debates today, the systemic
economic disadvantages preventing minorities from electing their pre-
ferred representatives was important in White. Indeed, when Mexican
American Legal Defense and Educational Fund (MALDEF) attorney
Eduardo Idar appeared before the Supreme Court in 1973, he noted
that minority candidates in Texas simply could not afford the huge
campaign budget necessary to reach and persuade voters.158 As such,
Black and Latino people were “frozen into permanent political minor-
ities destined for constant defeat at the hands of the controlling polit-
ical majority.”159
The attention given toward financial barriers and to successful
minority political contestation was even more important in the district
court’s decision.160 The plaintiffs in White relied substantially on evi-
dence that they simply lacked the financial resources needed to com-
pete for state assembly seats.161 Noting the importance of “campaign
and communication expenses,” the district court acknowledged that
Black and Latino voters in Texas “may operate to eliminate or to
delimit candidates and political associations that would otherwise be
able to wage more tenable campaigns.”162 The lower court readily
acknowledged the resource disadvantage faced by Black and Latino

156 Id. (emphasis added).

157 Id. (emphasis added).
158 White v. Regester: MALDEF Case Helped Kill Off Mega-Voter Districts that
Suppressed the Mexican American Vote, MALDEF (Dec. 26, 2018), https://
www.maldef.org/2018/12/white-v-regester-maldef-case-helped-kill-off-mega-voter-districts-
that-suppressed-the-mexican-american-vote [https://perma.cc/8WD2-SY33].
159 Id.
160 Graves v. Barnes, 343 F. Supp. 704, 732 (W.D. Tex. 1972) (“[W]hen a minority group
is invidiously disadvantaged by the concomitance of poverty . . . the Court will void such an
apportionment scheme.”), aff’d in part, rev’d in part sub nom. White v. Regester, 412 U.S.
755 (1973) (noting “a State may not design a system that deprives such groups of a
reasonable chance to be successful”).
161 White, 412 U.S. at 769.
162 Graves, 343 F. Supp. at 720–21.
May 2022] FINANCIAL INCLUSION IN POLITICS 609

voters, and the existence of “radically unequal expense” problems for

minority candidates.163 A change in Texas’s electoral system was thus
necessary to provide minority votes with “the opportunity to partici-
pate effectively in the political process.”164
In short, participation in the campaign finance system was an
essential part of effective participation in political life. The inability of
minority candidates to raise the resources necessary to campaign
effectively was an important factor that ultimately led the Court to
strike down the Texas scheme as dilutionary. The financial disadvan-
tages faced by minorities, which affected both voters’ ability to donate
and candidates’ ability to run campaigns, was an important factor,
even if it was not explicitly mentioned in the opinion. This language
omission, though, has had potentially important downstream
effects.165 Several crucial aspects of political participation require
money—most importantly, in order to conduct effective campaigns.

2. The Problem of State Action

Do racial disparities in citizen participation in the campaign
finance system or candidate-side racial disparities in access to cam-
paign resources constitute voting discrimination under the
Constitution? There has been some, though not much, scholarly
debate related to this question.166 No researcher has squarely con-
fronted the question, though, of whether deregulated campaign
finance constitutes a voting rights violation under the Constitution.
For practical reasons, we think a constitutional challenge is
unlikely to succeed. A successful challenge must establish that the cur-
rent campaign finance system is the result of state action. State action
is ill-defined,167 and in the classic case, it involves a state passing a law
or enacting a regulation that deprives a plaintiff of equal protection.
But state action is arguably broader than legislating or regulating. It

163 Id. at 721.

164 Id. at 734.
165 Using language that would later appear in the amended VRA, the Court defined
minorities’ voting rights in expansive terms—as the ability to both “elect legislators of their
choice” and “to participate in the political process[].” White, 412 U.S. at 766. However,
resource disparities in running campaigns were not explicitly mentioned.
166 See, e.g., Alexander, supra note 147, at 285–86 (arguing that principles from notable
voting rights case can be used in analysis of campaign finance reform); Raskin & Bonifaz,
supra note 2, at 278; Foley, supra note 2, at 1213; Sellers, supra note 139, at 1533–40. Note,
however, that while we agree with nearly all of the claims in this literature, these studies do
not squarely take on the issue of the political inequality created by our campaign finance
structures and which create problems related to the right to vote.
167 See generally Christopher W. Schmidt, On Doctrinal Confusion: The Case of the State
Action Doctrine, 2016 BYU L. REV. 575, 575 (describing the state action doctrine as a
“notoriously murky field of constitutional law”).
610 NEW YORK UNIVERSITY LAW REVIEW [Vol. 97:566

can also include state “entanglement” in repression, outside of the

official functions of the state apparatus.168 For example, in Terry v.
Adams, the Court struck down a white primary system in Texas, in
which white people got together before the official primary to choose
which (white) candidate would be the nominee.169 While there was no
majority rationale in Terry v. Adams—four Justices thought the
system violated the Fifteenth Amendment, and four thought it vio-
lated the Equal Protection Clause—Justice Clark’s opinion explains
that “any ‘part of the machinery for choosing officials’ becomes sub-
ject to the Constitution’s restraints.”170 Justice Frankfurter said that
the “vital requirement” for state action is that “somewhere, somehow,
to some extent, there be an infusion of conduct by officials, panoplied
with state power, into any scheme by which colored citizens are
denied voting rights merely because they are colored.”171
An even broader interpretation of state action—and one that
plaintiffs might need in order to bring a constitutional challenge—
involves interpreting “state neglect” as having ripened into state
action.172 To establish state action in the campaign finance context,
reformers would need to argue that after decades of neglecting to reg-
ulate campaign finance, states’ failures to do so (particularly in light of
citizen requests to act) should be interpreted by the courts as state
action. This is not a new scholarly angle—Cass Sunstein said in the
1990s that “[a] system of unlimited campaign expenditures should be
seen as a regulatory decision to allow disparities in resources to be
turned into disparities in political influence.”173 While today’s Court is
unlikely to take such a broad view of the state action doctrine, particu-
larly in the campaign finance context, we join prior scholars in seeing
an opening—albeit a narrow one—for a court to find state action in
either state involvement in private campaign financing systems, or in
state failure to regulate such a racially biased system.174

168 See id. at 589.

169 345 U.S. 461, 463 (1953).
170 Id. at 481 (Clark, J., concurring).
171 Id. at 473 (Frankfurter, J., concurring).
172 See Schmidt, supra note 167 at 590; Burton v. Wilmington Parking Auth., 365 U.S.
715, 725 (1961) (“By its inaction, the Authority, and through it the State, has not only made
itself a party to the refusal of service, but has elected to place its power, property and
prestige behind the admitted discrimination.”); cf. Flagg Bros. v. Brooks, 436 U.S. 149, 164
(1978) (“[A] State’s mere acquiescence in a private action” does not suffice to establish
state action).
173 Cass R. Sunstein, Political Equality and Unintended Consequences, 94 COLUM. L.
REV. 1390, 1399 (1994).
174 See Raskin & Bonifaz, supra note 2, at 306–12.
May 2022] FINANCIAL INCLUSION IN POLITICS 611

B. Deregulated Campaign Finance and the Voting Rights Act

Because of the intent requirement in constitutional litigation,175

section 2 of the VRA is the main weapon now used to challenge dis-
criminatory political structures. To prevail under section 2, plaintiffs
must show that “based on the totality of circumstances . . . the political
processes leading to nomination or election in the State or political
subdivision are not equally open to participation” for minority voters,
in that they “have less opportunity than other members of the electo-
rate to participate in the political process and to elect representatives
of their choice.”176
There are two main types of voting discrimination challenges
brought under section 2 of the VRA: “vote denial” and “vote dilu-
tion.” Vote denial cases implicate participation in the political pro-
cess—being able to register, vote, and have one’s vote be counted.177
Policies that are challenged for denying individuals the right to vote
include voter identification (voter ID) requirements, voter purges,
felon disfranchisement laws, and restrictive voting periods.178 Vote
dilution cases implicate fair representation through the aggregation of
minority citizens’ preferences.179 Dilution cases challenge practices
that diminish a group’s political influence. Common examples include

175 See City of Mobile v. Bolden, 446 U.S. 55, 67 (1980). In Bolden, the plaintiffs
brought suit claiming that election of city commissioners at-large diluted Black citizens’
right to vote, in violation of the Fourteenth and Fifteenth Amendments. While Black
voters comprised thirty-five percent of the population, no Black person had ever been
elected as city commissioner. Moreover, the plaintiffs cited a long history of racially
polarized voting at a level akin to what would be expected from a racially exclusionary
primary system, and that city officials were not responsive to the Black population. Both
the district court, 423 F. Supp. 384 (S.D. Ala. 1976), and the Fifth Circuit, 571 F.2d 238 (5th
Cir. 1978), ruled in favor of the plaintiffs. See Bolden v. City of Mobile, 423 F. Supp. 384
(S.D. Ala. 1976), aff’d 571 F.2d 238 (5th Cir. 1978). However, the Supreme Court reversed,
holding intent was necessary to establish racial discrimination. 446 U.S. 55, 67 (1980).
176 52 U.S.C. § 10301(b).
177 See Pamela S. Karlan, All Over the Map: The Supreme Court’s Voting Rights Trilogy,
1993 SUP. CT. REV. 245, 248–49 (noting that “vote denial” VRA cases challenge practices
that restrict voter participation, which is a component of the right to vote).
178 See Pamela S. Karlan, Turnout, Tenuousness, and Getting Results in Section 2 Vote
Denial Claims, 77 OHIO ST. L.J. 763, 766 (2016) (explaining that while section 5 had
previously prevented vote denial in covered jurisdictions, the Shelby County decision in
conjunction with increased partisan polarization led Republican-sponsored laws to reduce
voter turnout).
179 See Karlan, supra note 177, at 249 (identifying aggregation as a component of the
right to vote distinct from participation); see also Pamela S. Karlan, The Impact of the
Voting Rights Act on African Americans: Second- and Third-Generation Issues, in VOTING
RIGHTS AND REDISTRICTING IN THE UNITED STATES 121, 122–23 (Mark E. Rush ed.,
1998).
612 NEW YORK UNIVERSITY LAW REVIEW [Vol. 97:566

the use of at-large elections,180 multimember districts,181 and gerry-

mandered districts.
Admittedly, just as campaign finance doctrine is unlikely to be
shaped by equal protection concerns, it is unlikely to be affected by
disparate impact analysis under the VRA. Nevertheless, it is useful to
at least discuss the parallels between the harms imposed by electoral
structures traditionally challenged under the VRA—like at-large elec-
tions and voter ID laws—and the rules that structure the financing of
elections. Our empirical examination suggests that inequities in the
campaign finance system bear on both substantive elements of the
rights to vote embodied within the VRA—the right to participate and
the right to be fairly represented.

1. The Equal Participation Goal

When talking about the “right to vote” as participation, courts
and scholars are generally referring to the act of voting itself. How-
ever, the franchise’s participatory value is more general than the
ability to cast a ballot on election day. Meaningful political participa-
tion has rarely been limited to the act of voting exclusively.182 Rather,
citizen participation consists of “purposeful activities in which citizens
take part in relation to government.” The right to participate thus
includes “run[ning] for office themselves, vot[ing], urg[ing] others to
vote for a particular candidate, volunteer[ing] to work on a campaign,
and contribut[ing] to a candidate’s campaign.”183 Viewed under the
broad umbrella of participation that includes both voting and dona-
tions to campaigns, this “contributions gap” appears very similar to

180 See Chandler Davidson & George Korbel, At-Large Elections and Minority-Group
Representation: A Re-Examination of Historical and Contemporary Evidence, 43 J. POL.
982, 983 (1981) (describing how scholars have long believed that the use of at-large
elections prevents the election of minority officials). The Supreme Court case White v.
Regester involved the use of at-large elections in a way that was ultimately deemed
impermissible. See supra Section III.A.
181 See Walter L. Carpeneti, Legislative Apportionment: Multimember Districts and Fair
Representation, 120 U. PA. L. REV. 666, 670 (1972) (defining a multimember districting
scheme as one where “a city, county, or other area, which is numerically entitled to more
than one representative in the state legislature, is not subdivided into the appropriate
number of individual districts, but rather elects its delegation on an at large basis”). In the
famous vote dilution case, Whitcomb v. Chavis, 403 U.S. 124 (1971), plaintiffs
unsuccessfully attacked a multimember apportionment scheme on the grounds that it
unconstitutionally diluted their representation.
182 See Spencer Overton, The Participation Interest, 100 GEO. L.J. 1259, 1273–74 (2012)
(defining political participation broadly to include donating to or volunteering with
campaigns, lobbying government officials, and “public advocacy and protest”); Foley,
supra note 2, at 1226–27 (describing the “argumentative stage” of the electoral process in
which competing factions of voters attempt to persuade each other).
183 McCutcheon v. FEC, 572 U.S. 185, 191 (2014) (plurality opinion).
May 2022] FINANCIAL INCLUSION IN POLITICS 613

disparities in voter turnout that animate challenges to policies like

voter ID, voter purges, and the like.
Support for the “right to vote” as a protection of political partici-
pation can be found throughout the last seventy years of voting rights
jurisprudence. As far back as the 1950s, the Supreme Court has indi-
cated a willingness to provide minorities with equal opportunities to
participate at all points of the political process, not just on election
day. When the Court invalidated Texas’s “white primary” system, for
example, it denounced the exclusion of Black Americans from even
pre-primary organizations that affected who would run from a polit-
ical party.184 More recent cases demonstrate that political participa-
tion includes a range of activities centered on, but not limited to,
voting. And finally, the McCutcheon plurality explicitly equated
voting and spending as equivalent manifestations of “the right to par-
ticipate in electing our political leaders.”185
Scholarly analysis in the wake of Citizens United suggests there is
little normative justification for treating contributions and votes dif-
ferently, in light of the Court’s recent campaign finance decisions.186
The Court applies equal protection principles to vote denial chal-
lenges, but First Amendment principles to campaign finance restric-
tions cases. As Yablon points out: “[O]pen-ended constitutional
guarantees of equality and of expressive and associational liberty are
not so rigidly deterministic. Indeed, given that neither [the First or
Fourteenth Amendment] expressly refers to voting or spending, it is
not axiomatic that they are even the right constitutional starting
points.”187 In other words, the same underlying constitutional values,
such as the right to associate or express one’s point of view during the
political process, animate a voter’s decisions both to pull a voting
lever or make a donation to a candidate. Both are manifestations of
what Pamela Karlan refers to as “voting as participation.”188
We endorse the view that contributions and votes are both part of
a broad umbrella concept of “political participation.” An implication

184 Smith v. Allwright, 321 U.S. 649 (1944). The underlying principle was general: A
slating system that did not allow minority participation was a systematic attempt to deny
them “an effective voice in the governmental affairs of their country, state, or community.”
Terry v. Adams, 345 U.S. 461, 466 (1953) (plurality opinion).
185 McCutcheon, 572 U.S. at 191 (plurality opinion).
186 A notable, and crucial exception is articulated in Dawood’s important work
emphasizing that lumping voting and donating into the “participation” category, as the
McCutcheon plurality did, may open the court to disregarding voting equality as they do
speech equality in the campaign finance context. See Dawood, supra note 135, at 25–27.
187 Yablon, supra note 17, at 679.
188 Karlan, supra note 178, at 768 (2016) (quoting Pamela S. Karlan, The Rights to Vote:
Some Pessimism About Formalism, 71 TEX. L. REV. 1705, 1709–12 (1993)).
614 NEW YORK UNIVERSITY LAW REVIEW [Vol. 97:566

stemming from this inquiry is that racial disparities in the ability to

contribute to politics within a particular political subdivision is a mani-
festation of political inequality. As such, efforts to reform systems of
campaign finance at all levels of government have an underap-
preciated connection to minority voting rights. To the extent that con-
tributions are a form of political participation, racial disparities in the
campaign finance system may indicate that an electoral system has
deprived a minority community of its right to participate under the
VRA.
To see this, note that how the racial contribution gap feeds into
the turnout gap.189 Voters require sufficient information to make
informed decisions. As the Buckley Court itself acknowledged,
“informed public opinion is the most potent of all restraints against
misgovernment.”190 However, because minorities are less able to con-
tribute, they are also less likely to be approached by political cam-
paigns. The lack of campaign contact in turn reduces the likelihood
that minority voters know which candidate to pull a lever for on elec-
tion day—and thus less likely to show up at all.
Recent scholarship demonstrates how the financial needs of cam-
paigns lead to disparate exposure to candidate campaigns that fall
along class-based lines. Campaigns are resource-constrained—and
candidates competing in heavily minority districts are even more cash-
strapped.191 Candidates running for office in these places must thus
allocate their limited campaign money in the most cost-effective
way.192 These strategic cost considerations lead campaigns to allocate
mobilization efforts away from poor voters.193 Given that poor com-
munities are comprised disproportionately of racial and ethnic minori-

189 This argument was eloquently made by Bertrall Ross and Doug Spencer, who argue
that campaigns “disproportionately neglect the poor when canvassing, calling, and sending
political mailers to potential voters—mobilization activities that have a sizeable turnout
effect. In our view, the most significant voter suppression tactics of the twenty-first century
are therefore not what legislatures are doing, but what campaigns are not doing.” Bertrall
L. Ross II & Douglas M. Spencer, Passive Voter Suppression: Campaign Mobilization and
the Effective Disenfranchisement of the Poor, 114 NW. U. L. REV. 633, 633 (2019).
190 Buckley v. Valeo, 424 U.S. 1, 67 n.79 (1976) (per curiam) (quoting Grosjean v. Am.
Press Co., 297 U.S. 233, 250 (1936)).
191 See Tables 1 and 2, supra; see generally Jacob M. Grumbach & Alexander Sahn, Race
and Representation in Campaign Finance, 114 AM. POL. SCI. REV. 206 (2020).
192 Bertrall L. Ross II, Addressing Inequality in the Age of Citizens United, 93 N.Y.U. L.
REV. 1120, 1170 (2018) (describing how candidates will optimize their campaign
mobilization spending to maximize turnout subject to a budget constraint: “What
campaigns would like to do is spend the least amount of money to secure the most number
of votes.”).
193 Id. at 1170–71.
May 2022] FINANCIAL INCLUSION IN POLITICS 615

ties,194 biased campaign mobilization will disproportionately hurt

minority voters. Research from the social sciences consistently con-
firms that minority voters are the most difficult for campaigns to turn
out on election day.195 By extension, “biased mobilization” also
reduces the campaigns’ opportunities to learn about the needs and
preferences of their constituents, which can shape their perception of
the electorate.196
Former FEC Chair Ann Ravel further elaborates on how the cur-
rent operation of political campaigns—a crucial part of the political
process “leading to nomination [and] election”—leaves racial minori-
ties less able to make equally informed choices about voting.197 In par-
ticular, the increased use of “micro-targeting” by campaigns allows
candidates to target people who participate the most in politics, and it
helps campaigns seek additional donors.198 This targeting is based on
personal information including past campaign contributions.199 Given
the underparticipation of minorities in terms of donations, political
campaigns often neglect campaign communication with lower income
voters—particularly minority voters.200 This omission is exacerbated
because these groups have lower voting rates to begin with.

2. The Fair and Effective Representation Goal

The VRA has been interpreted to protect not only the right to
cast a ballot, but to provide aggregative protection to minorities

194 See Poverty Rate by Race/Ethnicity, KAISER FAM. FOUND. (2019), https://
www.kff.org/other/state-indicator/poverty-rate-by-raceethnicity [https://perma.cc/Z95E-
2EAN] (demonstrating that only ten percent of Americans living under the poverty line
are white, while approximately twenty percent of people living under the poverty line are
Black and Latino).
195 See Daniel Stevens & Benjamin G. Bishin, Getting Out the Vote: Minority
Mobilization in a Presidential Election, 33 POL. BEHAVIOR 113, 126–28 (2011).
196 Ross, supra note 192, at 1126–27.
197 See Ann Ravel, A New Kind of Voter Suppression in Modern Elections, 49 U. MEM.
L. REV. 1019, 1046 (2019) (“This segmenting of voters in campaigns leaves out a large
swath of the population who never receive political communications at all—primarily
lower income people or minorities.”).
198 See Christopher S. Elmendorf & Abby K. Wood, Elite Political Ignorance: Law, Data
and the Representation of (Mis)Perceived Electorates, 52 U.C. DAVIS L. REV. 571, 588
(2018) (discussing how political profiles are constructed to predict a voter’s “partisanship,
turnout propensity, policy preferences and even his or her likely response to different
campaign messages”).
199 See Ravel, supra note 197, at 1051 n.176 (noting targeting can be based on voting
behavior, past contributions, and data obtained by companies). See generally EITAN D.
HERSH, HACKING THE ELECTORATE: HOW CAMPAIGNS PERCEIVE VOTERS (2015)
(discussing how political campaigns use databases with voter information to perceive the
electorate and shape outreach tactics).
200 See Ravel, supra note 197, at 1046.
616 NEW YORK UNIVERSITY LAW REVIEW [Vol. 97:566

through the right to “elect the representatives of their choice.”201 His-

torically, the “[d]ilution of racial minority group voting strength may
be caused [either] by the dispersal of blacks into districts in which they
constitute an ineffective minority of voters or from the concentration
of blacks into districts where they constitute an excessive majority.”202
In either case, a minority group may be denied the right to elect the
representative of its choice despite the fact that its individual mem-
bers cast votes that are weighed equally with those of majority voters.
In terms of “fair and effective representation,” addressing dis-
tricting practices like “cracking” and “packing” only partially
addresses the set of electoral practices that ensure minorities have a
“fair opportunity”203 to elect their preferred representatives.204 As
our empirical analysis suggests, money is a prerequisite for the selec-
tion of democratic representatives. Financial resources are necessary
for campaigns, making them a precondition for the electoral success of
any community’s preferred candidate. Money is needed to pay for
media, staff involved in voter mobilization, and numerous other
administrative expenses.205 One recent study found the candidate who
raises the most money ultimately wins in over ninety percent of con-
gressional elections.206 This summary statistic should be treated with
caution, since it may very well be a reflection of better candidates
simply raising more money. Nevertheless, it is suggestive evidence of
the importance of money for electoral success.
The “political effectiveness” command of the VRA is hollow if it
does not encompass the ability of minorities to harness their voting
strength through voter mobilization and persuasion on minorities’

201 Thornburg v. Gingles, 478 U.S. 30, 46 n.12 (1986).

202 Id. at 46 n.11.
203 We use the term “fair opportunity” in the same manner as Professor Lani Guinier,
who defined it as “a principle of proportional power designed primarily to maintain
legitimacy from the perspective of minority interests.” Lani Guinier, The Representation of
Minority Interests: The Question of Single-Member Districts, 14 CARDOZO L. REV. 1135,
1143 (1993) (arguing for proportionality as means of increasing minority interest
representation).
204 See Pamela S. Karlan, The Rights to Vote: Some Pessimism About Formalism, 71
TEX. L. REV. 225, 234 (1993) (“[A]ggregation claims are largely group-based: They involve
claims by individual voters that they are part of a discrete group of voters whose direct
preferences have been unfairly ignored.”).
205 See Robert C. Smith, Financing Black Politics: A Study of Congressional Elections,
17 REV. BLACK POL. ECON. 5, 7 (1988) (“The pattern for media expenditures is as follows:
23 percent for television, 33 percent for printing, 9 percent for newspaper ads, 6 percent
radio and 23 percent in undesignated ad expenses.”).
206 ADAM LIOZ, DEMOS, STACKED DECK: HOW THE RACIAL BIAS IN OUR BIG MONEY
POLITICAL SYSTEM UNDERMINES OUR DEMOCRACY AND OUR ECONOMY 5 (2015), https://
www.demos.org/sites/default/files/publications/StackedDeck2_1.pdf [https://perma.cc/
6SEL-F98G].
May 2022] FINANCIAL INCLUSION IN POLITICS 617

preferred issues. Harnessing this strength requires some commitment

to providing minority communities with the resources necessary to
compete in elections. As we have just discussed, the omission of Black
and Latino voters from the donor class has the potential to do the
opposite, if minority-preferred candidates are either deterred from
running or guaranteed to lose due to financial constraints. The legisla-
tive debates surrounding the VRA support this interpretation. To
Congress, equal “political opportunity” meant including opportunities
for legislative lobbying and representative-constituent interaction.207
All of these types of political participation are dependent on candi-
dates having money.208

3. A Modest Proposal: Campaign Finance Disparities Under the

“Totality of Circumstances” Test
In our view, the evidence is clear that the deregulation of cam-
paign finance “operate[s] to minimize or cancel out the voting
strength of racial or political elements of the voting population,”209
due to preexisting racial disparities in economic status. In an ideal
world, campaign finance structure schemes would be subject to exami-
nation under section 2, to the extent that politicians from minority
communities faced resource disadvantages due to electoral financing
rules. Unfortunately, unlike the Fourteenth Amendment, the VRA is
unlikely to serve as a remedial tool for the problems we have laid out
above, given the Court’s current composition.210 Challenging an elec-
toral system because of its campaign financing rules would probably
be viewed as too distant from the types of discriminatory practices
intended by the drafters of the VRA.
The VRA is a discriminatory results-based law, not a discrimina-
tory intent one. Whether a jurisdiction deprives minorities of equal
political opportunity is decided under a localized, totality-of-
circumstances analysis. A more modest way to incorporate the
problems related to racial disparities in campaign finance participa-
tion and access would be to incorporate evidence of such inequities
into claims that are commonly alleged under current doctrine. Since

207 See Kathryn Abrams, “Raising Politics Up”: Minority Political Participation and
Section 2 of the Voting Rights Act, 63 N.Y.U. L. REV. 449, 460 (1988) (“Others described
the Act as combatting the reluctance of white and minority voters to interact in the
political process, thus highlighting not only lobbying activities, but the caucuses, meetings,
and informal contacts through which political alliances are forged.”).
208 LIOZ, supra note 206.
209 The Senate Report accepts the Supreme Court’s observation that “[t]he right to vote
. . . includes the right to have the vote counted at full value without dilution or discount.” S.
REP. NO. 97-417, at 19 (1982).
210 See Sellers, supra note 139, at 1557.
618 NEW YORK UNIVERSITY LAW REVIEW [Vol. 97:566

the seminal case Thornburg v. Gingles, a plaintiff aiming to demon-

strate that her political influence was illegally diluted must show what
is now commonly referred to as the “Gingles preconditions”211:
(1) that the minority group is sufficiently large and geographically
compact; (2) that the minority group is politically cohesive; and
(3) that white voters vote as a bloc and thereby typically defeat
minority-preferred candidates.212 Together, these factors provide evi-
dence of racially polarized voting, which has become the primary con-
sideration for assessing whether vote dilution exists.
Once the Gingles preconditions are satisfied, though, courts will
engage in a multifactor balancing inquiry before determining whether
vote dilution exists.213 In this stage of the analysis, litigants will gener-
ally discuss the additional evidence that may be probative of whether
a political system was “equally open to minority voters.”214 To guide

211 478 U.S. 30 (1986). The Supreme Court later suggested that the Gingles factors
would be necessary but not sufficient conditions for section 2 liability. See Johnson v. De
Grandy, 512 U.S. 997, 1011 (1994) (“[Gingles] clearly declined to hold [the three factors]
sufficient in combination, either in the sense that a court’s examination of relevant
circumstances was complete once the three factors were found to exist, or in the sense that
the three in combination necessarily and in all circumstances demonstrated dilution.”).
212 Gingles, 478 U.S. at 50–51.
213 See Johnson, 512 U.S. at 1013.
214 S. REP. NO. 97-417, at 28–29. The enumerated factors were:
1. the extent of any history of official discrimination in the state or political
subdivision that touched the right of the members of the minority group to
register, to vote, or otherwise to participate in the democratic process;
2. the extent to which voting in the elections of the state or political subdivision
is racially polarized;
3. the extent to which the state or political subdivision has used unusually large
election districts, majority vote requirements, anti-single shot provisions, or
other voting practices or procedures that may enhance the opportunity for
discrimination against the minority group;
4. if there is a candidate slating process, whether the members of the minority
group have been denied access to that process;
5. the extent to which members of the minority group in the state or political
subdivision bear the effects of discrimination in such areas as education,
employment and health, which hinder their ability to participate effectively in
the political process;
6. whether political campaigns have been characterized by overt or subtle
racial appeals;
7. the extent to which members of the minority group have been elected to
public office in the jurisdiction.
Id. In addition, the Senate enumerated two additional factors that were probative on the
issue of voter discrimination: “Whether there is a lack of responsiveness on the part of
elected officials to the particularized needs of minority group members,” and “[w]hether
the policy underlying the state or political subdivision’s use of the challenged standard,
practice, or procedure is tenuous.” Id. at 29. However, the report describes this list of
factors as neither exclusive nor comprehensive. Moreover, a plaintiff need not prove any
particular number or a majority of these factors in order to succeed in a vote dilution
claim. These factors were derived from the analytical framework of White v. Regester, 412
May 2022] FINANCIAL INCLUSION IN POLITICS 619

the analysis, the Senate Judiciary Committee in 1982 issued a report to

accompany the amended statute, widely known as “the Senate
Report.” These so-called “Senate Factors” were culled from voting
cases of the 1960s and 70s, and include a jurisdiction’s history of polit-
ical discrimination or prior use of election structures to submerge the
voting power of minorities.215 They have been used by plaintiffs to
supplement the evidence on the Gingles test for discrimination.
Several of the factors that Congress believed were demonstrative
of vote discrimination apply to privately funded elections. In our view,
evidence of systematic disadvantages faced by racial minorities in
financing campaigns can and should be used as additional evidence in
section 2 inquiries. We thus briefly discuss now how a jurisdiction’s
deregulated campaign finance structure relates separately to at least
two Senate Report factors that help determine whether an electoral
practice runs afoul of the VRA.
Importantly, this proposed use of campaign finance disparities
would not significantly alter existing doctrine in any way. As in all
dilution cases under section 2, a plaintiff would still need to first show
that a protected minority group is politically cohesive and geographi-
cally segregated. The plaintiff could then proceed to provide quantita-
tive evidence of racial disparities in campaign finance as a factor to
consider in the second-stage “totality of circumstances” analysis. The
defendant jurisdiction could respond by offering other neutral justifi-
cations for why racial minorities are poorly represented in the
financing of elections.

a. Factor Four: Deregulated Campaign Finance Schemes

Exclude Minorities from the Candidate Slating Process
Elections funded primarily by wealthy, white donors mean that
candidates of color are less likely to run in primaries, they raise less
money when they do run, and they are less likely to win. The fourth
factor in the Senate Report instructs courts to consider whether
“there is a candidate slating process, [and] whether the members of
the minority group have been denied access to that process.”216 This
factor clearly relates to the exclusion of minority voice in the selection
process of a party’s candidate—i.e., its primary process.217 In White v.

U.S. 755 (1973), and reaffirmed by Zimmer v. McKeithen, 485 F.2d 1297 (5th Cir. 1973) (en
banc), aff’d sub nom. E. Carroll Parish Sch. Bd. v. Marshall, 424 U.S. 636 (1976) (per
curiam). S. REP. NO. 97-417, at 28–29.
215 See S. REP. NO. 97-417.
216 Id. at 29.
217 Existing section 2 case law suggests that courts view slating as “a process in which
some influential non-governmental organization selects and endorses a group or ‘slate’ of
620 NEW YORK UNIVERSITY LAW REVIEW [Vol. 97:566

Regester, the Court relied substantially on the fact that the

Democratic Party had only nominated a Black candidate twice.218 The
exclusion of both Black citizens in the Democratic Party’s deliberation
(and the total absence of minority candidates fielded by the party)
indicated that “‘the black community has been effectively excluded
from participation in the Democratic primary selection process,’ and
was therefore generally not permitted to enter into the political pro-
cess in a reliable and meaningful manner.”219
Candidates of color are unable to compete in the “wealth pri-
mary” necessary to run competitive campaigns needed to qualify for
the general election.220 Research shows that financial barriers to com-
peting in the primary are an important determinant of minority polit-
ical selection (the “supply” of minority candidates).221 In other words,
most Black voters now believe that fewer candidates of color run for
office because they lack the financial networks necessary to raise
enough money for a run.222 Moreover, because minorities are on
average poorer than whites, they are also less likely to be able to self-
fund campaigns.223
The notion that evidence of financial barriers is relevant to the
fourth Senate factor is supported by existing case law from the lower
courts. There are several cases in which courts have found section 2
liability due to the exclusion (formal or informal) of minority candi-
dates from the party selection process.224 Moreover, in one particular
case, a lower court explicitly considered the exclusion of minority can-

candidates, rendering the election little more than a stamp of approval for the candidates
selected.” Westwego Citizens for Better Gov’t v. City of Westwego, 946 F.2d 1109, 1116 n.5
(5th Cir. 1991).
218 White, 412 U.S. at 766–67 (“[S]ince Reconstruction days . . . these two were the only
two [Black people] ever slated by the Dallas Committee for Responsible Government
(DCRG), a white-dominated organization that is in effective control of Democratic Party
candidate slating in Dallas County.”); see also Rogers v. Lodge, 458 U.S. 613, 625 (1982)
(“[P]ast discrimination had prevented blacks from effectively participating in Democratic
Party affairs and in primary elections.”).
219 White, 412 U.S. at 767.
220 See supra Part I.
221 Paru Shah, It Takes a Black Candidate: A Supply-Side Theory of Minority
Representation, 67 POL. RES. Q. 266, 272 (2014).
222 LIOZ, supra note 206, at 27.
223 Indeed, a cursory glance at the financial health of members of Congress suggests that
money is an important determinant of political selection. According to recent reporting,
the median net worth for a member of Congress in 2013 was $1.03 million. Alan
Rappeport, Making It Rain: Members of Congress Are Mostly Millionaires, N.Y. TIMES:
FIRSTDRAFT (Jan. 12, 2015, 5:54 PM), https://www.nytimes.com/politics/first-draft/2015/01/
12/making-it-rain-members-of-congress-are-mostly-millionaires [https://perma.cc/BE8W-
BMV8].
224 See, e.g., Citizens for a Better Gretna v. City of Gretna, 834 F.2d 496, 504 (5th Cir.
1987).
May 2022] FINANCIAL INCLUSION IN POLITICS 621

didates from primaries due to financial barriers as a factor that mili-

tated in favor of VRA violation.225 In this challenge to at-large
elections in a Georgia town, the district court concluded that the city’s
election practices constituted vote dilution in large part because
“African–American voters appear to have been unable to sponsor
candidates.”226 As the Court noted, part of the reason for this was
likely due to the fact that in prior elections, “none of the
African–American candidates received more total monetary contribu-
tions than any of the white candidates.”227

b. Factor Nine: Deregulated Campaign Finance Schemes

Reduce Responsiveness on the Part of Elected Officials
to the Particularized Needs of the Members of the
Minority Group
Responsiveness is the only Senate factor that considers whether
an electoral system is achieving the democratic goal of substantive
representation.228 Social scientists have provided extensive evidence
that contributions buy access to officeholders and influence the pool
of viable candidates—and that legislators’ roll-call votes are more
responsive to donor opinion than constituent opinion.229 As we
showed in Part I of the Article, higher levels of campaign spending
reduce the likelihood the representatives support the interests of
Black constituents.230 We also showed in Part I that when contribu-
tions from Black donors make up a greater share of election funds, the
resulting congressional representation is more liberal and more in line
with the political attitudes of Black constituents.231
Unlike votes for candidates for Congress, state legislatures, gov-
ernorships, and the like, campaign contributions can cross district
boundaries.232 This allows individuals to contribute to campaigns for
candidates who would not represent them geographically, but may
provide a kind of “surrogate representation.”233 Moreover, evidence
suggests the higher the percentage of out-of-district contributions a

225 Cofield v. City of LaGrange, 969 F. Supp. 749, 777 (N.D. Ga. 1997).
226 Id.
227 Id. at 768.
228 See Stephanopoulos, supra note 87.
229 See supra Section I.B.
230 See supra Part I.
231 See supra Section I.D.2.
232 See James G. Gimpel, Frances E. Lee & Shanna Pearson-Merkowitz, The Check Is in
the Mail: Interdistrict Funding Flows in Congressional Elections, 52 AM. J. POL. SCI. 373,
390–92 (2008); Fontana, supra note 125.
233 Jane Mansbridge, Rethinking Representation, 97 AM. POL. SCI. REV. 515, 522–23
(2003).
622 NEW YORK UNIVERSITY LAW REVIEW [Vol. 97:566

member receives, the greater their responsiveness to the national

donor base.234 Given the evidence in Table 3 above, the role out-of-
district contributions is particularly problematic for facilitating
responsive representation for racial minorities.235

IV
THE ROLE OF PUBLIC FINANCING IN ADDRESSING THESE
PROBLEMS

No single reform, whether created legislatively or judicially, can

eliminate the racial wealth gap and improve political representation.
However, studies of public campaign financing suggest that a well-
designed public financing regime can help to reduce racial and class
inequality among donors and in the candidate pool. If we can put
donors and nondonors on more equal footing, other salutary effects
should follow, like more equal access to elected officials and better
representation of constituents—who, under public financing, are also
more likely to be donors.236 For reformers, creating a public financing
program legislatively would be much more fruitful than challenging
our current, deregulated system and asking judges to impose a public
financing system as a judicial remedy.
Consistent with the First Amendment analysis in Part II, these
public financing programs can withstand constitutional scrutiny if they
are voluntary, avoid including provisions that might “level the playing
field” between candidates or among donors, and focus on anticorrup-
tion motivations for adopting the programs.237 Tying the two strands
of jurisprudence together, we note that some courts might view a gov-
ernmental interest in avoiding section 2 claims as a compelling gov-
ernmental interest sufficient to tolerate some (voluntary) restrictions
on political spending in a public financing program. According to
Morgan Kousser, Southern jurisdictions are historically the most likely

234 See, e.g., Brandice Canes-Wrone & Kenneth M. Miller, Out-of-District Donors and
Representation in the US House, LEGIS. STUD. Q. (forthcoming) (manuscript at 35) (on file
with the New York University Law Review).
235 See supra Section I.D.2, Table 3.
236 See generally Richard Briffault, Public Funding and Democratic Elections, 148 U.
PA. L. REV. 563 (1999).
237 Id. at 578. Arizona Free Enterprise and Davis both suggest that “leveling the playing
field” justifications for public financing are on shaky First Amendment ground. Ariz. Free
Enter. Club v. Bennett, 564 U.S. 721, 750 (2011); Davis v. FEC, 554 U.S. 724, 739 (2008).
For an argument in favor of public financing based around the incentive-aligning results of
public financing programs and corruption reduction that should follow, see generally
ZEPHYR TEACHOUT, CORRUPTION IN AMERICA (2014).
May 2022] FINANCIAL INCLUSION IN POLITICS 623

to face section 2 claims brought under the VRA, so they might find
this defense particularly appealing.238
In the balance of this Part, we describe the variety of public
financing programs and research to date on their effects on diversi-
fying the “selectorate” and candidate pool, and courts’ reactions to
them. We then propose that reformers should work through electoral
channels, though we believe that a court could require such as scheme
as a remedy in a section 2 claim as described above. Indeed, courts
have required more aggressive remedies in the past.

A. Public Financing Can Improve Financial Inclusion in Politics

Public financing works because candidates voluntarily limit the

size of contributions they can receive and the amount that they will
spend. The programs take many forms. Matching programs match
small donations with public money for any qualifying candidates.
Voucher programs send vouchers to people in the constituency that
they can assign to qualifying candidates. Other programs give block
grants to candidates once they have raised a certain number of small
donations and gathered a certain number of signatures.239 A voucher
program is more in line with solving the problems we identify here,
since it is more egalitarian in design and does not require any financial
outlay by donors in order to participate. A voucher pilot program is
currently contemplated for federal elections in H.R. 1, the For the
People Act.240

238 Morgan Kousser, Do The Facts of Voting Rights Support Chief Justice Roberts’s
Opinion in Shelby County?, TRANSATLANTICA (2015), https://journals.openedition.org/
transatlantica/7462 [https://perma.cc/FXH4-5X9W].
239 Resources abound. See, e.g., MICHAEL J. MALBIN, CAMPAIGN FIN. INST., CITIZEN
FUNDING FOR ELECTIONS (2015), http://www.cfinst.org/pdf/books-reports/CFI_
CitizenFundingforElections.pdf [https://perma.cc/AN4A-9TCH]; State Public Financing
Options 2015-2016 Election Cycle, NAT’L CTR. OF STATE LEGISLATURES, https://
www.ncsl.org/Portals/1/Documents/Elections/StatePublicFinancingOptionsChart2015.pdf
(July 17, 2015) [https://perma.cc/4Q7D-6557]; DEMOS, PUBLIC FUNDING FOR ELECTORAL
CAMPAIGNS: HOW 27 STATES, COUNTIES, AND MUNICIPALITIES EMPOWER SMALL DONORS
AND CURB THE POWER OF BIG MONEY IN POLITICS (2017), https://www.demos.org/sites/
default/files/publications/Public_Financing_Factsheet_FA%5B5%5D.pdf [https://perma.cc/
J6U4-ZJKA]; CFI Historical Database of State Campaign Finance Laws, CAMPAIGN FIN.
INST., https://cfinst.github.io/#contribution-limits?question=IndividualToCandLimit_H_
Max&year=2018 [https://perma.cc/FD3E-JS57]; Interactive Tool for Citizen Policy
Analysts, CAMPAIGN FIN. INST., http://www.cfinst.org/State/CitizenPolicyTool.aspx [https://
perma.cc/3AUT-YRUV].
240 See generally Gareth Fowler & Daniel I. Weiner, Understanding HR 1’s Public
Financing Provisions, BRENNAN CTR. FOR JUST. (2019) https://www.brennancenter.org/
sites/default/files/2019-09/Report_Understanding%20HR1%20Public%20Financing.pdf
[https://perma.cc/JW5F-QCGZ].
624 NEW YORK UNIVERSITY LAW REVIEW [Vol. 97:566

Public financing programs are hard to study because there are not
many of them, and they change over time. However, social scientists
have been able to draw some conclusions despite the difficult research
terrain. We highlight a few of their general benefits before turning to
their specific race and class equality benefits. Public financing pro-
grams have been found to increase the number of donors to cam-
paigns241 and, in some jurisdictions, increase the number of candidates
running for office.242 They also increase political competition, when
measured as reducing the number of uncontested seats or reducing
the incumbency advantage,243 though there is little evidence that,
among competitive races, publicly financed elections are more com-
petitive.244 When it comes to campaigning, candidates in public
financing programs dedicate more resources to door-to-door contact
and constituent phone calls. This should improve racial equality in
access and information, because as we explained in Part III, voter out-
reach is currently biased toward donors (read: white people) under
deregulated campaign finance.245 Moreover, despite fears that public
financing would prompt low-quality candidates to enter electoral cam-
paigns, the new candidates drawn to electoral politics by public
financing seem to be of similar quality to incumbents and candidates
that run under private financing.246 As Malbin reminds us, fine-
grained details in these programs can have big impacts on the out-
comes that reformers seek.247
Fewer studies have analyzed whether public financing programs
increase financial inclusion in politics for racial minorities. For those
that have, the potential seems promising. New York City’s long-
standing small-donor matching program (an eight-to-one match on
small donations) and Seattle’s “Democracy Voucher” program have

241 Michael J. Malbin, Peter W. Brusoe & Brendan Glavin, Small Donors, Big
Democracy: New York City’s Matching Funds as a Model for the Nation and States, 11
ELECTION L.J. 3, 3 (2012); Brian J. McCabe & Jennifer A. Heerwig, Diversifying the Donor
Pool: How Did Seattle’s Democracy Voucher Program Reshape Participation in Municipal
Campaign Finance?, 18 ELECTION L.J. 323, 332–33 (2019).
242 ELISABETH GENN, MICHAEL J. MALBIN, SUNDEEP IYER & BRENDAN GLAVIN,
BRENNAN CTR. FOR JUST., CAMPAIGN FIN. INST., DONOR DIVERSITY THROUGH PUBLIC
MATCHING FUNDS (2012), https://www.brennancenter.org/sites/default/files/2019-08/
Report_DonorDiversity-public-matching-funds.PDF [https://perma.cc/TJ7B-M49N]; see
also Malbin et al., supra note 241.
243 Neil Malhotra, The Impact of Public Financing on Electoral Competition: Evidence
from Arizona and Maine, 8 ST. POL. & POL’Y Q. 263, 264 (2008).
244 Kenneth R. Mayer, Public Election Funding: An Assessment of What We Would Like
to Know, 11 FORUM 365, 370–71 (2013).
245 See generally MICHAEL G. MILLER, SUBSIDIZING DEMOCRACY: HOW PUBLIC
FUNDING CHANGES ELECTIONS AND HOW IT CAN WORK IN THE FUTURE (2014).
246 Id.
247 See MALBIN, supra note 239, at 30–31.
May 2022] FINANCIAL INCLUSION IN POLITICS 625

greatly increased campaign finance participation in their cities.248

Neither program has fully equalized participation along racial or class
lines, but the programs offer much more promise for donor and candi-
date financial inclusion than deregulated campaign finance. Seattle’s
program has now existed through two local elections (2017 and 2019).
Jennifer Heerwig and Brian McCabe show that donor racial diversity
was higher among voucher users than among private donors in both
years.249 Seattle is a majority white city, but its two most diverse dis-
tricts saw much higher participation in the voucher program than they
did in private financing, especially in 2017.250 Class representation of
voucher donors was also closer to the class distribution in the city,
when compared to class representation among private donors, who
tended to be richer.251 Michael Malbin and his coauthors show that in
New York City, the proportional role of small donors increased, the
number of small donors increased, and the demographic and class pro-
file of donors shifted to be more representative as a result of the pro-
gram’s move from one-to-one to multiple matching.252
While studies seem fairly settled as to the potential of public
financing to increase and (usually) diversify the donor pool, it is
harder to get clear evidence on whether public campaign financing
definitively diversifies the candidate pool.253 Evidence from Seattle is
sparse, since the program is very new; however, women of color seem
to be more likely to declare their candidacies—and win—than under

248 See Malbin et al., supra note 241; see also McCabe & Heerwig, supra note 241;
JENNIFER A. HEERWIG & BRIAN J. MCCABE, GEORGETOWN UNIV., BUILDING A MORE
DIVERSE DONOR COALITION: AN ANALYSIS OF THE SEATTLE DEMOCRACY VOUCHER
PROGRAM IN THE 2019 ELECTION CYCLE 9 (2020), https://georgetown.app.box.com/s/
r2skgxfnc230ukkb3dfqgm4576phzabd [https://perma.cc/KX7T-59Q6].
249 One caveat is that in 2019, two socialist candidates for city council in Districts 3 and 4
received a lot of small cash donations (< $25) from a diverse set of donors, making the
small cash donor pool look more diverse than the voucher pool. However, the voucher
donor pool was more diverse than the pool of cash donors who gave more than $25. See
HEERWIG & MCCABE, supra note 248, at 9.
250 See McCabe & Heerwig, supra note 241, at 332–33.
251 Id.
252 Malbin et al., supra note 241, at 7.
253 Compare GENN ET AL., supra note 242, with Raymond J. La Raja & David L. Wiltse,
Money that Draws No Interest: Public Financing of Legislative Elections and Candidate
Emergence, 14 ELECTION L.J. 392 (2015), and Mitchell Kilborn, Public Campaign
Financing, Candidate Socioeconomic Diversity, and Representational Inequality at the U.S.
State Level: Evidence from Connecticut, 18 ST. POL. & POL’Y Q. 296, 313–14 (2018)
(studies finding that the Connecticut public financing program did not improve
socioeconomic diversity among candidates compared to similar states, but not analyzing
racial impacts). We agree with Malbin that more research is needed to settle the issue. See
MALBIN, supra note 239, at 18.
626 NEW YORK UNIVERSITY LAW REVIEW [Vol. 97:566

private campaign financing in that city.254 In New York City’s small-

dollar matching program, research on candidate diversity is limited,
but in the wake of the program and its increases in matching, more
minority candidates were elected, which Malbin says is plausibly
attributable to the matching program.255 Our firmest results on this
question come from Brazil. Political and development economists
studied mandatory public financing after a recent Supreme Court
decision in Brazil. They found that the candidate pool under public
financing was both larger and, on average, less wealthy than the candi-
date pool under private financing.256 Despite differences between the
U.S. and Brazil, the Brazilian case is consistent with evidence from the
smaller-scale examples of public financing in the U.S.
The Court’s friendliness to public financing programs is not guar-
anteed. The Court’s most recent statement on a public financing pro-
grams is Arizona Free Enterprise Club v. Bennett, which struck down a
public financing regime that provided a subsidy of matching funds for
competing candidates facing independent expenditures under various
scenarios.257 The Court said the provisions “impose[] an unprece-
dented penalty on any candidate who robustly exercises [his] First
Amendment right[s],” in particular because they engaged in the “dan-
gerous enterprise” of attempting to “level the playing field.”258 The
end result is that independent expenditures will probably always
remain a potential threat in public financing programs, or as Malbin
puts it, “that citizen funding programs cannot squeeze private money
out of politics.”259
While we have little jurisprudential guidance on the matter, it
seems that as long as they avoid the pitfalls of the Arizona program
just described, public financing programs can allow escape hatches
from the voluntary public financing restrictions in response to

254 SEATTLE ETHICS & ELECTIONS COMM’N, 2019 ELECTION CYCLE EVALUATION ex. 7
(2020), https://www.seattle.gov/Documents/Departments/EthicsElections/Democracy
Voucher/Final%20DVP%20Evaluation%20Report%20July23_2020.pdf [https://perma.cc/
VMQ8-ZN66].
255 MALBIN, supra note 239, at 30.
256 Eric Avis, Claudio Ferraz, Frederico Finan & Carlos Varjão, Money and Politics: The
Effects of Campaign Spending Limits on Political Entry and Competition (July 2021)
(unpublished manuscript), https://eml.berkeley.edu/~ffinan/Finan_Limits.pdf [https://
perma.cc/A7LL-ML4T].
257 Ariz. Free Enter. Club v. Bennett, 564 U.S. 721 (2011).
258 Id. at 736 (quoting Davis v. FEC, 554 U.S. 724, 739 (2008)) (invalidating a provision
raising contribution limits for candidates participating in the public financing program who
face self-funded candidates).
259 See MALBIN, supra note 239, at 2. Recall our analysis in Figure 6 that independent
expenditures are even more racially imbalanced than direct contributions. See supra Figure
6.
May 2022] FINANCIAL INCLUSION IN POLITICS 627

independent expenditures. For example, Seattle’s campaign finance

regulator allows candidates an escape hatch from the program’s lower
contribution limits and lower spending requirements once indepen-
dent expenditures made against a candidate exceeded the voucher
program’s spending limit. Amazon spent millions in independent
expenditures to support a slate of candidates in Seattle’s 2019 elec-
tion.260 In response, all but one of the publicly financed candidates
availed themselves of the escape hatch. So far, the Seattle program
has survived constitutional scrutiny, including a recent denial of a peti-
tion for certiorari from the Supreme Court on a challenge to the
“forced speech” landlords claimed the program thrust on them.261
Observers interpreted the certiorari denial as a win for public
financing.262

B. Electoral Jurisdictions Should Adopt Public Financing

The best way to implement these programs is through the elected
branches or via referendum. Legislators, governors, mayors, city
council representatives, and county elected officials are the closest to
the problem. Moreover, public buy-in (“this is our campaign finance
program”) will help a program persist over time.

260 All but one lost their elections. See Daniel Beekman & Jim Brunner, Amazon Lost
the Seattle City Council Elections After a $1 Million Power Play. Will It See a New Head
Tax?, SEATTLE TIMES (Nov. 10, 2019, 6:00 PM), https://www.seattletimes.com/seattle-news/
politics/amazon-lost-the-seattle-city-council-elections-after-a-1-million-power-play-will-it-
see-a-new-head-tax [https://perma.cc/WF69-4ZYX].
261 Elster v. City of Seattle, 444 P.3d 590, 592 (Wash. 2019), cert. denied, 140 S. Ct. 2564
(2020).
262 This escape hatch is different than the “subsidy” provided to campaigns in Arizona
Free Enterprise, because it merely allows publicly funded candidates to fundraise according
to the rules the privately funded candidates follow once money spent against them reaches
their limit, rather than providing them additional public funds to help equalize the
campaigns. Ciara Torres-Spelliscy, A Win for Public Financing at the Supreme Court,
BRENNAN CTR. FOR JUST. (May 15, 2020), https://www.brennancenter.org/our-work/
analysis-opinion/win-public-financing-supreme-court [https://perma.cc/GQB7-R8UX].
628 NEW YORK UNIVERSITY LAW REVIEW [Vol. 97:566

FIGURE 8. RACIAL CONTRIBUTIONS GAP BY STATE263

White–Nonwhite Contributions Gap

1.5 2.0 2.5

While we think that adopting public financing would be beneficial

to all jurisdictions, interest groups advocating for the adoption of
these policies must set priorities subject to resource constraints. One
useful way to prioritize is to consider which places in the United
States have the largest contributions gaps. In Figure 8, we show esti-
mates of the contributions gap in each state. We calculate the contri-
butions gap as the ratio between the percent of a state’s contributions
that come from white donors to the percent of a state’s population
that is white. A larger contributions gap means that the contributions
from a state’s donors are more white-dominated than we would
expect from its population demographics. As Figure 8 shows, the gap
tracks state diversity.264 States with higher percentages of nonwhite

263 The white-nonwhite contributions gap is measured as the ratio of the percent of
campaign contributions by white people to the percentage of the voting age population
that is white. State racial demographics are from the U.S. Census Bureau’s Bridged-Race
Population Estimates, available at Bridged-Race Population Estimates 1990-2019, CTRS.
FOR DISEASE CONTROL & PREVENTION WONDER SEARCH, https://wonder.cdc.gov/
bridged-race-v2019.html [https://perma.cc/GB8M-7MSC].
264 See, for example, the maps at William H. Frey, Diversity Defines the Millennial
Generation, BROOKINGS INST. (June 28, 2016), https://www.brookings.edu/blog/the-avenue/
2016/06/28/diversity-defines-the-millennial-generation [https://perma.cc/LV9Q-Y8NL];
Niraj Chokshi, Diversity in America’s Counties, in 5 Maps, WASH. POST (June 30, 2014),
https://www.washingtonpost.com/blogs/govbeat/wp/2014/06/30/diversity-in-americas-
counties-in-5-maps [https://perma.cc/YRJ4-M8M3].
May 2022] FINANCIAL INCLUSION IN POLITICS 629

residents also have larger inequalities between donors of color and

white donors. For example, 89% of California-based contributions
since 1980 come from white donors—more diverse than the contribu-
tions from other states—but the state’s population is only 37% non-
Latino white in recent years. By contrast, a state like New Hampshire
has a smaller racial contributions gap because, although its contribu-
tions are 98% white, its population is 90% non-Latino white.265

C. Public Financing as a Judicial Remedy

Of course, reformers could instead sue the government to enjoin
the laissez-faire system we currently have. The remedy requested
would be bold: Litigants would ask the courts to force the government
to create a public financing program. It is a tall order: What Court
would ever force a jurisdiction to adopt public financing? To that, we
respond, the same kind of Court who saw racial inequality in
schooling and required that states fix it, or the same kind of court that
saw Eighth Amendment violations in prisons and required that cities,
counties, and states implement reforms.266 In other words, requiring a
jurisdiction to implement public financing is less impactful or onerous
than other major court-mandated actions to ameliorate untenable sit-
uations. It is also less costly than a judicial remedy to directly rectify
the racial wealth gap would be.
While it may not be particularly likely in the current political cli-
mate, and while it is less desirable than a legislative fix, there is
nothing obviously legally or constitutionally flawed in a request. A
future Court could require public financing of campaigns as a remedy
to the cycle of representational problems described in this Article.

CONCLUSION
Campaign finance has a race problem. Because of our country’s
historical and ongoing policies that create and exacerbate the racial
wealth gap, white donors are far more able to donate, and to donate
large amounts, than Americans of color. We show this with new data
estimating the race of contributors, finding that approximately ninety-
one percent of contributions since 1980 are from white donors—a
number that has changed little in more recent years.267

265 Quick Facts: New Hampshire, U.S. CENSUS BUREAU (July 1, 2021), https://
www.census.gov/quickfacts/NH [https://perma.cc/X42J-MB57].
266 See Brown v. Bd. of Educ., 349 U.S. 294, 301 (1955) (directing the lower courts to
issue orders to desegregate public schools).
267 See supra Section I.C.1, Figure 4.
630 NEW YORK UNIVERSITY LAW REVIEW [Vol. 97:566

The racially homogenous composition of campaign contributions

leads to racial biases in representation. Social science research over
the past two decades has established causal evidence of how campaign
contributions influence the electoral candidate pool as well as buy
access to the ears of incumbent officials.268 Our new analyses show
that more expensive elections reduce the likelihood that candidates of
color run, and that the racial makeup of campaign contributions
affects legislators’ behavior in office.269
The massive gap in contributions has follow-on effects, in which
donors get better access to and better representation from their
elected officials. All of this can give rise to a cognizable claim. One
solution is for candidates to bring a claim under the Voting Rights Act
to urge the courts to force the government to implement a public
financing program. But the better option is to implement these pro-
grams and then defend them in court.

268 See supra Section I.B.

269 See supra Section I.D.