Saturday, April 19, 2014

Is Money Speech?

Dan Backer represented Shaun McCutcheon before the U.S. Supreme Court in McCutcheon v. Federal Election Commission—a case in 2014 that further relaxed campaign-contribution limits beyond the openings created in the Citizens United decision in 2010.  Backer argued before the Court that any restriction of political contributions is a violation of the First Amendment's right of free speech. In an interview after the Court handed down its McCutcheon decision, Backer said, "I don't understand why anyone should have their free speech limited to help somebody else feel like they can speak more. The Constitution does not envision the idea of, as the court said, 'weakening the rights of some and the speech of some in order to enhance or promote the speech of others.'"[1]
A week after Backer’s interview, when $57 million had already been spent by outside groups on the 2014 midterm elections, David Keating, an advocate of the deregulation of campaign finance, put it simply as “money means speech.”[2] Interestingly, Backer backed off such a stark equivalence. "The court did not say, and really neither does any serious commentator, that money is speech. Money is not speech. Money is a necessary tool to engage in political speech and political association.”[3] Money is not speech; rather, money is a necessary prerequisite. Hence Backer treated the right to spend money (on political campaigns) as essentially the right of free speech applied to politics. In other words, the assumed necessity of money for political speech means that the right of free speech in electoral politics is essentially violated if the right to spend money is severed or even truncated.
However, is spending money really necessary for a person to be able to “speak” politically? Is it necessary to purchase a television ad-slot to be able to make a political speech? Surely more political discourse occurs than what is broadcast as political advertisements. I suspect that spending money can amplify one’s political speech in that the audience is made much larger; this is not to say that achieving such a scale is necessary for one to be able to speak on political matters.
For that matter, is a campaign contributor seeking to influence public policy (directly or via the election of a particular candidate) by spending money on a campaign even speaking? Keating would doubtlessly say yes. Money means speech. Pivoting off Backer’s (common sense?) point that money is not speech, however, we might say that the spending is necessary for one’s own speech to be accomplished through the agency of another party, such as a political campaign or an outside group; spending money on political campaigns essentially “hires” someone else to “do” one’s speech. Is such a “hiring” included in the right of free speech?
Moreover, is the right of free speech—meaning that a person’s political speech cannot be prohibited by the state—the same as the right to speak (not to mention through another party via a commercial transaction)? Similar to how procedural due process somehow got enlarged include substantive due process, I suspect that the right of free speech has inadvertently come to include the right to have one’s political views aired directly and even the right to essentially hire another party to broadcast them (assuming such hiring is necessary to one’s views “getting out there”).
The sheer expansiveness in judicial doctrines such as the commerce clause, establishment of religion, due process and free speech may be similar to the tendency of “weak states” to spend more on consumption than investment due to democratic pressures for instant gratification. In short, people want more and more, and are all too willing to contort prime facie meanings and tolerate absurdities such as “money is speech.” I submit that much daylight exists between government being prohibited from outlawing certain political speech and a right to spend money on political campaigns.

1. Ryan Grim, “Now He Tells Us: McCutcheon Attorney Admits Money Is Not Speech,” The Huffington Post, April 7, 2014.
3. Grim, “Now He Tells Us.”