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]
[7]
