Abstract

Excerpted From: Blair T. Page, The Color of Money: How Our Broken Campaign Finance System Fuels Racial Inequality, 30 William and Mary Journal of Race, Gender, and Social Justice 385 (Winter, 2024) (169 Footnotes) (Full Document)

In the wake of the COVID-19 pandemic, the 2020 Presidential Election saw an unprecedented expansion of ballot access. The expansion resulted in the largest participation in a Presidential election during the twenty-first century. In response to this increase, Heritage Action, the political arm of the Heritage Foundation, launched a campaign to get states to enact stricter voting laws to limit access to the ballot. To fund this effort, Heritage Action raised millions from undisclosed donors. This money is also known as “dark money.” “Dark money,” is money spent to influence elections without the identity of the donor being disclosed. These bills passed in states that were hotly contested in 2020, and likely in the future.

Heritage Action was instrumental in helping craft and pass Georgia's voter suppression law, S.B. 202. The legislation targets minority voters with laser-like precision. Black and brown voters in Georgia on average face longer lines and waits when trying to cast a ballot. This law makes it illegal to hand out water and snacks to voters waiting in line. Mobile voting units, used almost exclusively in the county with the state's largest Black population to help cut down on long lines, are now illegal. As Democrats become more competitive in Georgia and elections fall within a few points, every effort, no matter how slight, to depress turnout could potentially swing the outcome of the election.

While Georgia's S.B. 202 and other voter restrictions are the most prominent examples of the laws “dark money” help support, there are many others. Millions of dollars flood these campaigns from unknown sources looking to limit political participation and the overall impact of racial minority groups.

Unlimited and untraceable contributions by corporations and individuals severely undermine the democratic process and lead to adverse electoral and policy outcomes for racial minorities. This Note argues that the current campaign finance regime in America disproportionately harms voters of color. This Note calls for tighter regulation of campaign finance law to level the playing field for Black and Brown voters.

This Note begins by generally explaining the history of campaign finance law, its current structure, and “dark money.” While this is not a Note explaining the complete landscape of campaign finance law, knowledge of the legal background is necessary to understanding this Note's main argument. Examining the history of campaign finance law, the regulatory schemes, and rationales behind the laws will help illuminate why the Supreme Court's jurisprudence has had deleterious effects on not only America's democracy, but particularly people of color.

Second, this Note will examine the ways dark money has been used to directly and indirectly harm people of color. Voting rights are only one area affected by the influence of “dark money.” Other areas include the environment, health care, criminal justice, and a host of other issues. Although news outlets pay attention to the results of these harmful policies, there is little to no coverage on the connection between the policies and who or what is funding the political operation that keeps them on the books.

“Dark money” can also be a way in which racial capitalism perpetuates itself. Racial capitalism, “the process of deriving social and economic value from the racial identity of another person--is a longstanding, common, and deeply problematic practice.” Individuals or corporations benefit from a very laissez-faire campaign finance system which allows them to support politicians who will vote to keep their industries largely unregulated. This is incredibly harmful as it places African Americans further at the mercy of the market.

Third, “dark money” theoretically helps advance the policy preferences of racial minorities as they overwhelmingly back Democrats. Since 2020, Democrats and liberal groups have overtaken their Republican and conservative counterparts in terms of “dark money” raised and spent, and have shown no signs of slowing down. This Note does not suggest that Democrats enacting policies are better for minority voters, but it is worth noting that their preferred candidates are benefitting greatly from the opacity of America's current laws.

Arguments against reforming campaign finance laws have rested on the fact that minority candidates already have greater difficulty raising campaign funds than their white counterparts. In keeping with those arguments, the tightening of campaign finance laws would place minority candidates even further behind. Additionally, minorities hold less wealth than white Americans. Thus, theoretically, a tightening of campaign finance rules would hurt minority candidates even more. Black candidates do not have the same wealth base from which to draw donations. However, minority candidates no longer face the same barriers to fundraising to the extent they did before, as Black candidates now regularly outpace their white counterparts in fundraising. While there is no single reason to explain why Black candidates are now doing so well fundraising, it is clear that the gap is closing. Now that the landscape has changed, it is time to rethink campaign finance reform and its net positives for minority voters.

Lastly, reform of America's campaign finance laws and tax code is a racial justice issue and would produce a healthier democracy overall. The current Supreme Court has expressed no interest in upholding any limits on contributions and independent expenditures, as they deem it violative of the First Amendment. While there are proposals for new arguments for campaign finance reform, it is difficult to see how they could withstand scrutiny from the Supreme Court given its current conservative supermajority. Clarence Thomas, arguably the ideological leader of the conservative supermajority, has been hostile to any limits on political contributions and has swayed other justices to this position. Thomas holds political contributions at the most “significant [level of] constitutional protection,” as the contributions generate “essential political speech.” While this level of scrutiny does not inherently doom campaign finance regulations, it is difficult to imagine any regulation surviving this Court.

Some scholars have suggested that public financing of political campaigns would help ameliorate the racial inequalities in politics. They argue that white donors are over-represented in politics, thus, politicians are more likely to be responsive to their needs than the needs of their less wealthy, likely minority constituents.

While there is no shortage of proposed solutions, it is clear that America's current campaign finance regime must change. This Note will make the case as to why campaign finance is one of the most pressing racial justice issues of today, and what Congress can do to solve it.

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People of color are consistently and disproportionately affected by the worst aspects of our society, and the negative effects of our broken campaign finance system on people of color are rarely discussed or even connected. However, it is time to start addressing it.

The road to reforming our broken campaign finance system seems long and arduous, and there are legitimate First Amendment concerns about how to appropriately limit independent expenditures. But nowhere in our Constitution does it suggest that the voices of a few should drown out the voices of the many.

Blair Page is a 2024 JD Candidate at William & Mary Law School.