The Wealth Primary

In 1964, Annie Harper and other Virginia residents went to court to challenge the poll tax in their state elections because it discriminated against them on the basis of their poverty. By then, the 24th Amendment to the U.S. Constitution had been ratified, prohibiting the further use of the poll tax as a requirement for voting in federal
elections. By 1964, the poll tax remained as a barrier to the right to vote for poor African Americans and poor whites only in four Southern states. Virginia was one of those four.

Two years later, the United States Supreme Court issued its landmark ruling in Harper vs. Virginia Board of Elections,
and struck down the $1.50 poll tax in Virginia state elections. In a reversal of a 1937 Supreme Court decision, the court ruled that the poll tax violated the constitutional guarantee of equal protection for all. Annie Harper could no longer be barred from voting simply because she was poor.

With the Harper case, the Supreme Court for the first time articulated the constitutional principle that wealth must not serve as a barrier to equal participation in the democratic process. The court wrote: "We conclude that a State violates the Equal Protection Clause of the 14th Amendment whenever it makes the affluence of the voter or payment of any fee an electoral standard." The court further held: "Wealth, like race, creed, or color, is not germane to one's ability to participate intelligently in the electoral process."

In the 1972 case of Bullock vs. Carter
, the court again faced the issue of wealth as a barrier in the electoral process, striking down a system of high filing fees that Texas required candidates to pay to appear on the primary ballot. The fees ranged from $150 to $8,900. The court invalidated the system on Equal Protection grounds. "We would ignore reality were we not to find that this system falls with unequal weight on voters, as well as candidates, according to their economic status," the court stated.

TODAY, WE MUST CHALLENGE the newest wealth barrier to the right to vote: the "wealth primary." The wealth primary is the exclusionary process, leading up to every party primary and every general election, in which those with money or access to money through campaign contributions choose the candidates who almost invariably go on to govern. Those who do not raise enough money-that is, those who lose the wealth primary-almost always do not win office.

The rest of us, the vast majority of American people, are shut out of this process. Because we have, ultimately, little say in the outcome of elections, our right to vote is debased and undermined. Our system of financing electoral campaigns is constitutional no more.

For years, the campaign finance question has been posed as a question of the First Amendment rights of well-financed candidates and wealthy contributors. The Supreme Court helped frame it that way in its controversial 1976 decision in Buckley vs. Valeo, 424 U.S. 1
, when it struck down on First Amendment grounds mandatory congressional limits on overall campaign expenditures, on candidates' expenditure of their personal wealth, and on "independent" expenditures.

But the constitutional question posed by the wealth primary is not only about the First Amendment rights of the wealthy. It is also about the Equal Protection and First Amendment rights of all voters and candidates who are left behind in the fund-raising process because of their lack of money and access to money. No federal court in the nation has ruled on these latter critical questions.

Our current system of financing electoral campaigns now stands where the poll tax and the high candidate-filing fee systems once stood. While the poll tax and candidate-filing fees involved barriers created by statutes, the Supreme Court long ago recognized, through cases challenging whites-only primaries, that the Constitution prohibits barriers to the democratic process even if they are not mandated by a statute. A process that is integral to the overall election of public officials and becomes "part of the machinery" for getting elected is a process which, under the constitutional guarantee of Equal Protection, must be open to all (Terry vs. Adams, 345 U.S. 461
; 1953).

Like the white primary of the past, today's wealth primary is exclusionary and, therefore, unconstitutional. To protect the constitutional rights of all candidates and voters regardless of their economic status, we ought to have a system of democratically financed elections where we the people, rather than only the wealthy, control and own the process.

Sal Albanese, a New York City Councilmember, and a diverse group of voters in New York now seek to follow the footsteps of Annie Harper and the other Virginia residents who led the way nearly 30 years ago for the abolition of the poll tax. On July 13, 1994, Albanese and the voters filed suit in federal court in Brooklyn challenging the wealth primary system in congressional elections.

They have alleged that the Federal Election Commission, Susan Molinari (their representative in Congress), and Molinari's re-election committee have all organized and participated in the exclusionary wealth primary process. As a former congressional candidate and as voters, Albanese and the other plaintiffs are effectively excluded from that process because of their lack of wealth and access to wealth.

In the face of the challenges to the wealth primary system, the courts may choose to preserve an illogical and anti-democratic tradition. For decades, they preserved previous barriers to the right to vote. But the courts may instead decide to examine the sad reality of American politics today and carry forward this nation's constitutional promise of democracy.

Sal Albanese and the New York voters represent the Annie Harpers of a new democracy movement. The wealth primary may stand today. But, like the poll tax of the past, it will not stand forever.

JOHN BONIFAZ is executive director of the Boston-based National Voting Rights Institute and co-author, with Jamin Raskin, of "Equal Protection and The Wealth Primary," (Yale Law & Policy Review, Vol. 11, No. 2, 1993). ABIGAIL TURNER is senior staff attorney at the National Voting Rights Institute. The non-profit institute is committed to initiating a series of first-ever court challenges across the country to the constitutionality of today's campaign finance system.