Monday, May 26, 2014

The European Parliament: A National Election?

In the wake of the E.U.’s parliamentary election in 2014, the media reported the results as though a number of “national elections” had just taken place. Unlike the European Council, the Parliament does not represent states; in fact, the representatives of the people do not even sit by state, but by federal-level party, renders the reportage as distortive at best. Moreover, its ideological bent can help us situate the E.U. along the interval of federal-state relations possible in federal systems; this situs in turn can tell us something about the likely trajectory for the Union—the electoral success of the Euro-skeptic parties being only a symptom. To situate the election results, I briefly cover a bit of federalism theory before discussing the election-results coverage itself.

Modern federalism, which combines “confederal” alliance governance with principles of national government, requires considerable vigilance to balance the two systems lest one engulf the other. In his seminal work on the subject, Federal Government, Kenneth Wheare contends that modern federalism requires no such balance to operate; all that is necessary is that the states and the federal government each have at least one domain of authority that is autonomous. He would be at pains to show that the nearly-consolidated U.S. “federal” system functions as a federal system rather than as a “one size fits all,” empire-scale government. He would also have trouble explaining how the state-centric E.U. “federal” system enables the federal level to function viably.

Unfortunately, the respective imbalances may worsen. Theoretically speaking, dissolution is the main risk facing a federal system dominated by its state governments, whereas consolidation is the alluring danger for a federal system dominated by its federal, or “general,” government at the expense of those of the member-states. If this hypothesis is correct, then the tendency of a given federal system can be predicted only once it has been situated relative to a threshold point wherein federal/state powers are in balance.  Even though state-rights claims of state sovereignty in the E.U.’s 2014 election season can easily be classified as ideologically fanciful, the preponderance of governmental sovereignty being at the state level portended a probably future of dissolution; the U.S. nearly succumbed to this plight in 1832 (the Nullification Crisis) and then again thirty years later (the USA-CSA war) because the states had most of the power back then. By World War II, the U.S. had “crossed the threshold” in terms of federal-state power, such that consolidation became the probable “end-game.” As E.U. citizens went to the polls in 2014, no one would accuse the E.U. of pursuing that course.

Notably, at least one major European press reported the E.U. legislative election erroneously as “European elections.”[1] Even though “countries” are not represented in the E.U.’s parliament, The Financial Times characterized the election as several national elections—even claiming that the UKIP party’s electoral success was the first time a third party had won a “national election” in Britain.[2] Even in terms of a “state delegation,” the Parliament, like the U.S. House, acknowledges no such grouping formally; in both legislative bodies, the representatives, who represent constituents in federal districts, do not even sit by state.

Marine Le Pen of France's National Front Party. Can the E.U.'s legislative election be reduced to several state-level elections? Je crois que certainment non.

To be sure, the E.U. was at the time much more state-centric than the U.S., as evidenced by the plethora of state-level parties dwarfing the federal-level ones. Even so, the characterization of “national elections” for an election bearing only on the E.U. and its citizens cannot be justified, and is thus likely the manifestation of a states-rights ideological agenda—the major attendant danger to which being dissolution. Put another way, relegating the direct relation between the E.U. Parliament and E.U. citizens in the public’s mind could compromise the Union’s viability more than the electoral success of the Euro-skeptic state-level parties in the national election (the Parliament being in line with national rather than international principles).  

1. Peter Spiegel and Hugh Carnegy, “Anti-EU Parties Celebrate Election Success,” The Financial Times, May 26, 2014.
2. Ibid.

Friday, May 23, 2014

Federalism and the Democratic Deficit: The E.U. as Suboptimal?

One major criticism of the E.U. has concerned its “democratic deficit.” The European Commission, the E.U.’s executive branch, has taken most of the criticism because the bureaucrats are not elected. Even though the European Council consists of elected state executives, the state legislatures are viewed as “closer to the people” and therefore more democratic. At the E.U. level, the European Parliament is the most directly democratic, as the EP’s representatives are directly elected by E.U. citizens. Therefore, one means of reducing the “democratic deficit” has been to increase the Parliament’s authority relative to those of the Commission and the Council. Lest it be thought that this solution has no drawbacks, the case of whether E.U. ships should be permitted to be beached for recycling in South Asia illustrates a problem.
Beaching old ships for recycling in South Asia is cheaper but can result in leaks of toxic chemicals. Image Source: Agence France-Presse/Getty Images
Facing pressure from South Asian governments, the E.U. state leaders on the European Council opposed a ban on beaching over the objections of environmental groups. Facing a different political dynamic, the European Parliament favored the ban. After weeks of negotiations, the parliament and council agreed to a compromise. Beaching a ship would be allowed as long as “fixed structures” are involved. As this wording is notoriously open to interpretation, clarity was sacrificed for the sake of a compromise.[1]
Interpretation may not even be necessary, as the E.U. has no language in the compromise to prevent ships from changing their flags, Patrizia Heidegger of the NGO Shipbreaking Platform observed. “So the stronger language won’t mean much,” she added.[2] The compromise looks a bit like Swiss cheese. Lest this flaw be attributed solely to politics, that the Council had to negotiate with the Parliament on the matter means that the solution to the “democratic deficit” is at least partly to blame. That is to say, public policy can suffer from efforts to reduce the deficit.
Of course, that the E.U. consists both of states and citizens means that the Council and Parliament both have vital roles in the E.U.’s government aside from the issue of democracy in a federal system. So public policy being diluted in the negotiation process is also a necessary part of having a federal union of states with direct effect. Even if no “democratic deficit” existed, in other words, the involvement of both the Council and the Parliament, and thus the negotiation, would be on firm ground. Even so, this “cost” of having a federal union can be minimized by the principle of subsidiarity, wherein legislation is to be accomplished at the lowest governmental level possible. In the case of the U.S., the problem of “lowest common denominator” federal legislation can in principle be mitigated by the fact that Congress’s powers are enumerated, and thus limited, with the residual sovereignty residing with the state governments. The problem is thus when too much legislation occurs at the federal level, whether in the E.U. or U.S.
1. Costas Paris, “EU Won’t Ban Ship Recycling on Asian Beaches,” The Wall Street Journal, June 26, 2013.
2. Ibid.

Britain Bucks E.U. Bonus Caps for Bankers

Not long after the passage of an E.U. law limiting bonuses for bankers in the E.U., one state government (the usual suspect) filed a lawsuit in federal court (the ECJ) to contest the new law before it even went into effect. Perhaps it could have been said that 'banker-bonus caps is to Britain as "Obamacare" is to Texas.' Although federal overreach was an element in both complaints, we can still ask what was the true basis of Britain's suit.
It would make sense that Britain might point to a trend of lower compensation since a peak in 2007. In plain words, Britain's attorney could justifiably have argued the new law was no longer necessary as the excessive bonuses had already been tapering off from a peak.


 Providing its “bare bones” legal basis, Britain claims in the filing that the law is unconstitutional because it would push “bankers’ fix pay up rather than down, which will make banks themselves riskier rather than safer.”[1] The law “is not fit for purpose,” according to a state official, which is to say that the results of the legislation could already be anticipated to contravene rather than advance the law’s own purpose.

 The European principle of proportionality means that federal law must be in keeping with the aim pursued. The purpose of this principle is to restrict the power of the federal level. Together with the subsidiarity principle, the intention is to protect state governments from excessive federal encroachment. The U.S. has a comparable feature in the Tenth Amendment. As of 2013, it was still an open question whether the principles of proportionality and subsidiarity would eventually be jurisprudentially sidelined as the Tenth Amendment had been in the U.S. since 1865. The state of Britain would have had good reason to contest any federal overreach in order to keep the E.U. from sailing through a federal balance on the way to consolidation.

 Lest it be concluded that the concerns in the British government pertained mostly to protecting the system of federalism, “many [people] in London’s financial district . . . harshly criticized the bonus cap, arguing that it would harm the competitiveness of the city and [the E.U.] as a whole.”[2] It is feasible that “the city” was in the driver’s seat, with the government happily going along as a sort of front hiding the raw, self-serving greed of a private interest. To be sure, the “states’ rights” agenda was undoubtedly in the mix—Britain being the South Carolina of the E.U. However, whereas the South Carolina legislature had passed a law nullifying any federal law not in South Carolina’s interest, the Britain legislature decided it would “impose the cap because it was obliged to do so under [E.U.] law.”[3]

 One implication is particularly important. That the House of Commons recognized that even a contested federal law is nonetheless binding on Britain and its legislature is also a recognition, even if tacit, that the atom of governmental sovereignty had indeed been split; rather than being a confederal alliance such as the U.S.’s Articles of Confederation (1781-1789), the E.U. was even by 2013 a federal government—the most salient attribute of modern federalism being dual sovereignty.[4]

 The point being typically missed, it bears repeating. In acknowledging that the British government, as a state government (formerly “host kingdom” in the British Empire), is bound by E.U. laws even if they run contrary to Britain’s interests (e.g., undercutting London’s competitiveness), that government cannot then turn around and argue that the E.U. is one of the networks to which Britain just happens to belong. Nor could Britain claim that the E.U. is a mere confederation, wherein sovereignty remains with the members. In other words, by the definitions and a bit of logic, the implication is that Britain was at the time not a member of, but, rather, a state in the E.U. That's quite a bonus.

[1] Julia Werdigier, “Britain Sues to Stop Cap on Bonuses for Bankers,” The New York Times, September 25, 2013.
[2] Ibid.
[3] Ibid.
[4] Kenneth C. Wheare, Federal Government (Oxford: Oxford University Press, 1970).

Thursday, May 22, 2014

The 2014 E.U. Parliament Election: A Gray Cloud with a Silver Lining

Whereas the European Parliament election in 2009 suffered from state-level issues and low voter-turnout, the legislative election in 2014 promises to be a super-charged one in the “super-nation.”[1] Most notably, the electoral contests are “shaping up as no less than a referendum on the merits of continuing on with the European Union itself.”[2] With popular distrust of the E.U. at an all-time high, this bit of news seems rather bad for pro-E.U. Europeans. Any pessimism in anticipation of the election that exists is mitigated by “the bigger picture.”

The European Parliament. (comagra.eu)

Specifically, I want to point to the shift from the European electorate essentially using the federal legislative elections as a means of contesting on state-level issues or otherwise simply abstaining from voting at all, whether out of protest or sheer indifference. Debating the E.U. itself implies a shift to the federal level, which is proper for a federal election. 

Lest it be feared that the anti-federalists, or euro-skeptics, win big, the practical impact would likely be less than that which federalists fear, for the Parliament’s powers are dwarfed by those of the European Council and the Council of Ministers. It is the anti-federalist sentiment in those bodies that can inflict serious damage, or at least hamper, the E.U. as a viable federal union. The shift to using the Parliament election to debate the E.U. itself may be an early sign not of dissolution, but, rather, of tacit acceptence of there being a federal level.

[1] Peter Goodman, “Skepticism and Contempt Color Upcoming European Parliament Elections,” The Huffington Post, January 21, 2014.
[2] Ibid.

The Swiss Vote to Restrict Immigration: Direct Democracy in Action

On February 9, 2014, the Swiss voted in a non-binding referendum by a narrow margin (50.3%) in favor of immigration quotas and an end to “mass immigration.”[1] This result took the government by surprise; officials had been urging the people to vote no. So too had the Swiss bankers—only coincidentally of course. Just enough voters rebuffed the establishment of power and wealth for the referendum to pass. Johann Schneider-Ammane, the Swiss Economy Minister, suggested that a “culture of excess” in the pursuit of profit sometimes at the expense of the common good had discredited the political and business elite in the eyes of ordinary people.[2]

Johann Schneider-Ammane, the Swiss Economy Minister. Rarely does a prominent member of the political/business elite publicly criticize it while stressing how it differs from the people. 
(Image Source: Ruben Sprich of Reuters)

Put more abstractly, direct democracy broke from the grips of a firmly-established plutocracy (rule by wealth), even if only for a day.  This caveat is important, for the referendum’s non-binding feature means that the government is not bound to craft the majority vote into law. Put another way, the game-rules were tilted or rigged in favor of the financial sector and the government, and thus of representative over direct democracy, and, moreover, of plutocracy over democracy itself. If the check on popular passions afforded by representative democracy (e.g., terms of office) does not trump the value-added from the direct will of the people in direct democracy, the non-binding rule is sub-optimal.

As yet another drawback, E.U. government officials did not miss a beat in exploiting the non-binding feature by publicly pressuring the legislators of the independent state to resist writing the referendum’s result into law. Besides what this high-level squeeze says about the tilt toward representative democracy and even plutocracy at the expense of the people’s will having direct effect, I submit that the distinction between the nature and scale of an empire and those of polities on par with the empire’s constituent political units (i.e., states) is disregarded as well.

Martin Schultz, the president of E.U.’s parliament at the time of the referendum, immediately accused the Swiss citizens who voted yes of having succumbed to “the lowest instincts” rather than being led “by rational arguments.”[3] If the statement sounds like rhetoric designed to influence a vote already taken, the underlying intent may have been to exploit the referendum’s non-binding feature by pressuring the government of the independent state to act contrary to the will of the majority.[4] That is to say, Schultz and other E.U. government officials sought to exploit the distinction between direct and representative democracy.

The question of fairness in government officials of an empire-scale union of states pressuring legislators in an independent state largely flew under the world’s radar screen. As various E.U. officials hinted that the maintaining the free movement of workers is a requirement in the European free-trade agreement (EEA), no one bothered to recall that an empire-scale “territory of territories” consists of many cultures, whereas within a state (or even an independent state-scaled republic like Switzerland) cultural or ethnic diversity does not necessarily exist, at least not anywhere near that of an empire-scale federal union. In fact, the E.U. citizens and residents moving from one state to another are actually “quasi-immigrants”—a hybrid status that reflects the dual-sovereignty that exists in modern federalism (e.g., the E.U. and U.S.). Therefore, inter-state movement of people within the E.U. is more necessary than the free movement of immigrants in the independent state of Switzerland (whose cantons are roughly equivalent in scale to counties in some E.U. and U.S. states). 

Is it fair that a policy stemming from the nature of an empire-scale “compound” polity be pushed on an independent state? At the scale of polities that are states (in empire-scale Unions-of-states) or regions (in China), or republics (in Russia), homogeneity (e.g., a shared culture) has been the default, and indeed arguably of value in terms of solidarity (which an empire typically has trouble achieving, given the inherent interstate diversity).

To be sure, the Dutch and German states had been empires in medieval times; that Switzerland was as well can be seen in the linguistic and cultural diversity still remaining there. Yet by early modern standards, those federations were on the scale of the early-modern nations (hence then on the state-scale, rather than that of empire). The strengthening of centralized monarchs and the related military advances effectively extended the quarters of homogeneity, and thus pushed out the scale of empire (as consisting of those nations).

In conclusion, in threatening the Swiss government with exclusion from the free-trade area because a slight majority of the Swiss voting yes felt that the diversity already extant in their state-scale polity was compromising unity possible at that scale (but not at that of an empire), the E.U. officials were conflating the nature of an empire with that of the political units therein. In other words, to apply the level of inter-state “immigration” needed in the E.U. to state-scale Switzerland involves a rather fundamental political category mistake. What is necessary and fitting for one level of governance is not necessarily so at another level.  



[2] Edward Taylor, “Swiss Immigration Vote Shows Loss of Trust in Business Elite: Minister,” Reuters, February 12, 2014.
[4] Actually, the majority of 50.3% is only barely a majority. Considering that only half of the eligible voters voted, the “majority” is actually a minority of the electorate, not to mention the general population. 

Should Britain Secede from the E.U.?

The real purpose of the E.U. is not economic, but political. It began as the ECSC, which was geared to making sure that Germany would not re-militarize by extracting iron from the Rhine region. The purpose of the E.U. is to obviate the sort of bloodshed that Britain saw in WWI and WWII. If the British people don't want to be in the E.U., then you should leave. I don't believe that even your own government should keep you from deciding such a matter as a people, directly. That said, with great power comes great responsibility, and this applies to popular sovereignty. In other words, the people taking up the mantle of direct democracy in a constitutional referendum should make an informed decision, looking beyond even the people's own immediate interests. The stakes are much, much higher than whether being in the E.U. is an economic net loss or gain to Britain on a yearly basis, or even whether the City is crimped or inconvenienced. Much more is at stake.

After watching Downton Abbey(season 2), War Horse, or Saving Private Ryan, you might want to reflect on the risks involved in secession. You might just be anticipating a future war between you and the continent. You might even be starting a chain reaction that could result in Europe itself being fractured. The Hungarian right, for instance, is urging Hungary to secede. Lest you think there is no long-term benefit in Eastern Europe being in the E.U., you might study Serbia a bit more than a century ago.

Oh, and by the way, the word from Switzerland is that the EEA is just about as restrictive as the E.U. because the EEA had to adopt most of the E.U.'s economic regulations in order to trade with the E.U.'s states. So be careful what you wish for—you might find that you have even less impact on trade regulations that bind you. You might be better off with a “multi-track” E.U. that, unlike the U.S., accommodates different preferences among the states. In other words—and I suspect this will not be lost on any of you—you can be part of something that outdoes the U.S. by improving immensely on modern federalism at the empire-level by showing the world how flexibility can be built in. Or, you can sit on the sidelines as the E.U. continues on to "ever closer union" while accommodating those states that want more room yet are nonetheless part of the union—part of the effort to obviate war in Europe for your generation and your posterity. The choice is yours.

The 2014 E.U. Presidential Debate:An Analysis

The election, or selection, of the E.U.’s chief executive in 2014 tacitly pitted democracy at the federal level against the equally legitimate prerogative of state governments to protect their turf through their direct involvement at the federal level. This tension exists institutionally in the European Council and the European Parliament, and in the problematic procedures for how the E.U. president is to be selected. In this essay, I contend that the European project has more to do in terms of how both the states and E.U. citizens both have a role in the selection.

Euroskeptics point to the democracy deficit as but one of the justifications for defending state rights against federal encroachment. So it is significant in terms of continued European integration that, in 2014, for the first time, the parties in the E.U. Parliament nominated their respective candidates for president of the European Commission, the E.U.’s executive branch. Although E.U. citizens could not vote directly for any of those candidates, the choice of representative necessarily involves a choice of party. Yet even this indirect, or parliamentary, democracy had to contend with the other major element of the E.U.—that which can be called confederal. Namely, the E.U. represents not only individuals, but also states. Whereas the European Parliament represents the former, the European Council represents the latter. In a system of modern federalism, wherein both the federal and state governments are semi-sovereign, both representatives of the people and officials of the state governments must be accommodated at the federal level. So it is fitting, though certainly not comfortable, that the European Council members—the state governments represented by their respective executives—are obliged according the 2009 Lisbon Amendment to “take into account” the choice of the European Parliament for President of the Commission “before selecting the new head.”[1] Of course, the choice of the Parliament is, in the words of The Financial Times, “the EU election result.” The implication of the Council having only to take it into account does not bode well for European democracy at the federal level.

It is no accident that in the 2014 presidential debate, Jean-Claude Juncker stressed that the state constitutions must be respected at the E.U. level even as Catalonia and Scotland bristle under two; he undoubtedly knew that the state governors would have a say on his candidacy even if the Parliament votes in his favor. Identifying this vote with the Parliament election, the five candidates were united on the stage in their firm belief that the state government officials in the European Council would be obligated to pick from among the five. Interestingly, the five did not hold as one would expect from a democratic standpoint that the Council would be obligated to select the candidate whose party does best in the election; not even parliamentary democracy is so direct, given the typical need to form coalitions.

 The state leaders sitting on the European Council are of course themselves democratically elected, and from this basis they could assert their own imprint on the decision from democratic auspices. Moreover, the governors could point to the U.S. as evidence of just how real the risk of political consolidation is at the federal level once the direct involvement of the state governments at that level is weakened or removed outright. This occurred in the U.S. in 1913, when popular election replaced appointment by state legislature as the means by which U.S. senators are selected. Mandating that the European Council accept the will of the people as judged by the Parliament by limiting consideration to the five candidates selected by the parliamentary parties entails that the state governments cede their power to see to it that the next E.U. president be a person who could be expected to protect the states' turf in the face of baleful federal encroachment.

To be sure, other ways exist for giving both states and individuals a role in the selection of a federal president. In the U.S. the Electoral College exists to give weight to both the people and the states. Technically, the voters vote for electors, who in turn meet by state to vote or the U.S. president. While this system suffers from severe flaws, so too does the procedure governing the E.U.’s presidential election in 2014.

The five presidential candidates at the debate held in May, 2014 at the European Parliament in Brussels. The debate went from issue to issue, more or less in line with what people were tweeting about, rather than focusing on the "big picture" of the European Union. (Image Source: Europolitics.com)

The 2014 election included the first E.U. presidential debate, which brought with it the implication that one of the five candidates would be elected as president. The five said as much. For the state governors in the European Council to protect the state-federal balance of power by “overruling” the election result would be to expose the democracy deficit as all too real. With only 43 percent of E.U. citizens voting in the last E.U. Parliament election, the number would surely be less if the message in 2014 is that the results of the voting do not matter in the selection of the federal chief executive. That much of the debate centered around banking and austerity rather than the future direction of the E.U. itself suggests that the event would not stimulate much voter interest in the E.U.

Making matters worse, Martin Schultz, president of the Parliament and one of the five candidates, claimed during the debate that the E.U. is “not a federal state. We are a union of sovereign countries.” This ceased to be the case when the E.U. gained its first competency from the states. By the year of the presidential debate, the E.U. institutions such as the Commission, Parliament, and European Court of Justice had enough governmental sovereignty to render Schultz’s claim patently absurd. Contravening his own assertion, Schultz joined with the other presidential candidates in asserting that the “sovereign” state governments represented in the Council are obliged to rubber-stamp the Parliament’s decision as per the federal election. In the words of James Madison, the European Parliament is a national institution whereas the European Council is federal; the mixture of these two types is what we know as modern federalism. So it is odd, to say the least, not to mention oxymoronic, that the sovereign states must bend to a federal-level election and subsequent confirmation by a federal-level “national” legislature. In American terms, it would be like telling the U.S. Senators that they are obliged to vote for the result obtained in the U.S. House of Representatives; the U.S. Senate being based on federal principles and the House resting on “national” principles.

In conclusion, the E.U.’s basic or constitutional law on the selection of the chief-executive is inherently unstable. The states could lose a means by which they have to protect their prerogatives against federal encroachment, and E.U. citizens could come to perceive the democracy deficit as real (and themselves marginalized as voters in federal elections). As the case of the U.S. attests, maintaining a viable federal-state balance of power is fraught with difficulties over the long term. Pretending the states are still sovereign will not help the Europeans do better. The best chance lies with forsaking neither the ability of state governments to protect their portions of governmental sovereignty nor the place of democracy distinct at the federal level. Unlike confederalism, modern federalism is a system of government in which both citizens and polities are members, and the various procedures and institutions at the federal level should be geared to enabling both of the member-types to protect themselves and enjoy a pro-active role federally.



1. James Fontalella-Khan, “Fresh Powers Add Spice to European Parliament Election Battle,” The Financial Times, 8 May, 2014.

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.
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