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.
2. PBS News Hour, “Why
Outside Groups Are Pouring Record Amounts of Money into this Year’s Midterm
Elections,” April 16, 2014.
3. Grim, “Now He Tells Us.”
