The U.S. Senate Judiciary Committee held a hearing yesterday called "The Citizens United Court and the Continuing Importance of the Voting Rights Act." At first glance, this may seem a strange title. Citizens United, after all, was a (flawed) decision about the role of money in politics. The Voting Rights Act (VRA) was passed in 1965 (and reauthorized several times since) to secure racial, ethnic, and (later) language minorities' access to the ballot. Why bunch them together in one hearing?
First, the role of money in politics is a voting rights issue—and it's gratifying to see the Senate make the connection. The core problem with allowing millionaires and billionaires to drown out the voices of ordinary citizens is that this denies average Americans the equal opportunity to influence the decisions that affect their lives. It's a violation of the core American principle of political equality—the same concern that animated the "one person, one vote" Supreme Court cases that prevent legislators from drawing districts with wildly different populations, and the same reason it's critical to protect everyone's right to cast a vote and have that vote counted effectively, which is the explicit goal of the Voting Rights Act.
One might think of the fight to get big money out of politics as part of the unfinished business of the voting rights movement. One critical task is to make sure that everyone, regardless of race or class, is able to register to vote, cast a ballot, and have her vote counted. The VRA was a landmark moment in that struggle, and we've seen a lot of progress in the past 47 years. Unfortunately the last two years have brought significant steps backward with coordinated campaigns to roll back access to the ballot, and we still have work to do on this front (check out Demos' latest report on ballot access issues).
But, at the same time, we must recognize that being able to vote only gets you so far. To have truly effective representation you also need candidates who speak to your needs and who will promote policies that will improve your life. And you need these candidates to have a fair chance to win, based upon the number of voters who support their ideas, not how loudly they can shout those ideas in the public square. To be fairly represented, the strength of your voice can't depend upon the size of your wallet.
To build a fair and inclusive democracy, we need to get money out and people in. These are two sides of the same coin.
The second reason the Senate Judiciary committee linked money in politics and voting rights is that both are in the crosshairs at the Roberts Supreme Court.
For decades the Supreme Court has been hostile to democratically-enacted limits on political fundraising and spending, failing to see the importance of carefully balancing two of our nation's most important political and constitutional values—liberty and equality. But when John Roberts took over as Chief Justice, the Court abandoned any semblance of balance, opting instead for strict anti-regulatory orthodoxy. In Citizens United, the Roberts Court took this orthodoxy to the next level, fueling a movement to amend the constitution to correct the Court's mangling of the First Amendment.
Now, there's a real danger the Roberts Court will refocus its hostility to political equality in its upcoming term. Section 5 of the Voting Rights Act requires certain jurisdictions with a history of voting discrimination to submit any changes in voting laws or procedures to the Department of Justice or a federal court for "pre-clearance" before they can go into effect. It's basically preventative medicine for violations of voting rights—and it's been a key part of the VRA's success.
South Carolina challenged Section 5 immediately after its passage, and the Supreme Court upheld it in 1966. Since then, jurisdictions covered by Section 5 have periodically brought lawsuits that claim something along the lines of "Section 5 was fine when it was passed, but we don't do those nasty things anymore and so the Feds can't keep making us submit our voting changes for approval—it's unconstitutional." The Court rejected these claims and upheld the law again in 1980 and 1996.
Now Shelby County, Alabama, Florida, South Carolina, and Texas are all challenging Section 5—and the Supreme Court will almost certainly take up at least one of these challenges (experts predict Shelby County) in its upcoming term. The Court should reject these challenges quickly and easily. Just last month, federal courts rejected two voting changes from Texas in the same week—a districting plan and a voter ID provision—because the state could not show that the changes wouldn't hurt minority voting rights. In fact, the presiding judge in the districting case found that the legislature had drawn the maps with a "discriminatory purpose." What more proof can the Supreme Court need that, sadly, Section 5 still serves a pressing purpose?
But, most Roberts Court observers expect the conservative justices to look at Section 5 with a skeptical eye. The Senate Judiciary Committee may be right to fear how the "Citizens United Court" will treat the cause of political equality in another form.