In a close and insightful reading of Chief Justice Roberts’ opinion in McCutcheon, reproduced here with his permission from the election law listserv, Marty Lederman has called attention to this first paragraph:
There is no right more basic in our democracy than the right to participate in electing our political leaders. Citizens can exercise that right in a variety of ways: They can run for office themselves, vote, urge others to vote for a particular candidate, volunteer to work on a campaign, and contribute to a candidate’s campaign. This case is about the last of those options.
McCutcheon v. FEC, 134 S.Ct. 1434, 1440-41 (2014). The right that Roberts cites—the right to participate in the electoral process—is apparently wide in scope and includes a “variety of activities,” including voting. So Marty notes that this rationale does not spring from pure “free speech” jurisprudence, and indeed he argues that “if there were such a basic right, the opinion would make much more internal sense than if viewed through a Free Speech Clause” lens. While disclaiming “naiveté” about the Roberts Court’s commitment to the interests of voters, Marty asserts that if “taken seriously,” this freshly minted right to participate could “be the source of a new flourishing of voting rights and other election-related rights.”
The same paragraph has also struck Sherrilyn Ifill as noteworthy, but she sees it as a derogation of voting rights, “the singular, most important expression of civic participation,” now to treated as no more than “one ‘option’ among a menu of potential means by which one may participate in the electoral process.” Where Marty Lederman sees opportunity, Ifill perceives a blow to “the primacy of voting.”
Who knows what the Chief Justice intended? The first paragraph of his opinion could be a rhetorical throat-clearing without intended doctrinal significance. But if, in Marty’s words, this language is to be “taken seriously,” it could point in a direction very different from the one that Ifill is concerned about. Something like this happened in the case of the “equal protection argument” articulated in Bush v. Gore. It could, perhaps, happen here.
Of considerable appeal is any suggestion that the constitutional protection of political activity extends beyond just speech to encompass “action.” Elsewhere I have argued for “a right to do politics,” to engage in political action in all its complexity, that transcends free-speech rights. The Right to “Do Politics” And Not Just to Speak, 9 Duke J. Const. L. & Pub. Pol’y 67 (2013). An example of what is missing from a purely speech-focused First Amendment analysis is the state of the law governing “coordination.” The regulation of coordinated activity converts the work of building coalitions and working with allies into speech units subject to varying prohibitions and limitations. The relevant analysis is highly reductionist, traveling the lanes laid out in Buckley; the coordination activity results in either a “contribution” or “expenditure,” and how much of the activity is allowed rests entirely on which it is.
The outcome in practical terms seems peculiar when viewed from a distance, freed from this constricting, Buckley-centered point of view. For as the law now stands, coordinated political action results in tracking and limiting “contributions” among allies, which triggers a lower level of constitutional protection than, say, the millions in “independent spending” by millionaires and billionaires. What is spent on the ground to accomplish shared political objectives somehow counts for less than what is spent on the air in acts of self-expression. A right to participate, one that takes account of the “variety of ways” people join together in political action, could offer a vigorous politics more protection than the insistence, stemming from Buckley, on isolating and classifying speech acts.
In this respect, understood in this way, the right to participate could be tantamount to a “right to do politics.” That would be good: it would be beneficial in steering the debate, maybe eventually the law, into new territory. Sherrilyn Ifill may be right that there is peril here—that the subsequent course of interpretation of this McCutcheon paragraph could go badly. But this is a fight worth having. More of the same—the standard claims and counterclaims about types of speech and the regulation appropriate to each—will only generate … more of the same.