Thursday, May 1, 2014

John Paul Stevens: Money Is Not Political Speech

In his testimony before a U.S. Senate Committee in 2014, former U.S. Supreme Court Justice John Paul Stevens addressed the need for an amendment to the U.S. Constitution giving Congress and the States the power to restrict political campaign contributions.[1] After listing leveling the playing field such that rival candidates have equal opportunity to persuade, freeing up elected officials from having to spend so much time raising campaign funds, and distinguishing constituents from non-voters (including unions, corporations, and people of other electoral jurisdictions in the U.S.), he stated his position in particularly clear terms. “Money is not speech,” he declared. “Speech is only one of the activities that are financed by campaign contributions and expenditures. Those financial activities should not receive precisely the same constitutional protection as speech itself.”[2] 

Justice John Paul Stevens looking every bit the jurisprud. 

In short, even money given directly to a political campaign does not reduce to political speech. Although Citizens United (2010) and McCutcheon (2014) were being much cited at the time as baleful cases sure to transform the American democracy into a plutocracy, or rule by wealth-interests, Stevens went back to a 1976 case as the reason why a constitutional amendment rather a mere statute would be needed to place limitations on monetary contributions to political campaigns.[3] In denying Congress the power to impose limits on campaign contributions, the Court in Buckley v. Valeo issued the infamous equivalence between money and speech. To Stevens, money is speech is the fundamental error promulgated by the Court in Buckley that has led successive majority opinions to eviscerate campaign finance limitations enacted by Congress. I submit that the ex-jurist could have drawn on the Buckley decision for support, thus undermining the resulting legal doctrine as a legal precedent for the Court. 
The appellants in Buckley claim that “contributions and expenditures are at the very core of political speech, and that the Act's limitations thus constitute restraints on First Amendment liberty that are both gross and direct.”[4] Being at the very core of political speech, the monetary contributions effectively constitute such speech; restricting such expenditures thus violates the First Amendment directly in abridging the freedom of speech. In the words of the appellants, “limiting the use of money for political purposes constitutes a restriction on communication violative of the First Amendment, since virtually all meaningful political communications in the modern setting involve the expenditure of money.”[5] The money-speech equivalence is thus a function of modernity, and is therefore not quite as unconditional and inherent as money is speech implies at face value. Indeed, the Court’s majority opinion itself undermines the equivalence.

Seemingly cementing the equivalence yet rendering less than unconditional (and thus tacitly undermining it, strictly speaking), Court’s majority opinion accepts the appellants’ “modernity” argument. “A restriction on the amount of money a person or group can spend on political communication during a campaign necessarily reduces the quantity of expression by restricting the number of issues discussed, the depth of their exploration, and the size of the audience reached. This is because virtually every means of communicating ideas in today's mass society requires the expenditure of money. The distribution of the humblest handbill or leaflet entails printing, paper, and circulation costs. Speeches and rallies generally necessitate hiring a hall and publicizing the event. The electorate's increasing dependence on television, radio, and other mass media for news and information has made these expensive modes of communication indispensable instruments of effective political speech.”[6] The necessity of expenditures for a person (or persons, in associations) to have political speech makes the instrument political speech itself. That is, the necessity of the means essentially collapses the means-end dichotomy into a fusion as money is speech.

Yet the Court does acknowledge that “in contrast with a limitation upon expenditures for political expression, a limitation upon the amount that any one person or group may contribute to a candidate or political committee entails only a marginal restriction upon the contributor's ability to engage in free communication. . . . A limitation on the amount of money a person may give to a candidate or campaign organization thus involves little direct restraint on his political communication, for it permits the symbolic expression of support evidenced by a contribution but does not in any way infringe the contributor's freedom to discuss candidates and issues. While contributions may result in political expression if spent by a candidate or an association to present views to the voters, the transformation of contributions into political debate involves speech by someone other than the contributor.”[7] That is, the expenditure of money on political campaigns, as distinct from what Stevens called “general issues” in his testimony, enables someone else’s political speech. The money-speech equivalence being interpersonal (i.e., my money is equivalent to your political speech), restricting my contributions to a campaign violates the candidate’s right of free political speech.

Although it could be argued following the reasoning of the appellants in Buckley that technology and the contribution-levels enabled by the judicial doctrine of money-speech equivalence make a candidate’s right of political speech contingent on unencumbered political contributions, the interpersonal separation between the spender and speaker renders the money-speech equivalence as something less than a full, or fused, identity; restrictions on a person’s campaign contributions do not violate his or her first amendment rights. Therefore, Stevens could have cited the Buckley case in support of his argument that “money is not speech,” hence undermining the equivalence as a judicial doctrine from within the bloated whale itself.

[1] John Paul Stevens, Campaign Finance Disclosure, U.S. Senate Committee on Rules and Administration, April 30, 2014.
[2] Ibid.
[3] Even though Stevens distinguished such contributions bearing directly on an election from money spent on general issues, I am not sure this distinction can hold up in practice, especially given the increasingly elongated “campaign season” (which comes at the expense of governing).
[4] Buckley v. Valeo, 424 U.S. 1 (1976).
[5] Ibid.
[6] Ibid.
[7] Ibid.