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Money and Speech:

This morning's campaign speech case from the Supreme Court, Randall v. Sorrell, leaves me with little new to say, which is fortunate because I have little time right now to say much about it. Still, Justice Stevens's repetition of the old saw that "it is quite wrong to equate money and speech" struck me as mistaken enough to be noteworthy. (The occasional argument of some critics of campaign finance law that money is indeed speech is equally mistaken.)

The reason that the Court struck down the law here — which, among other things, would have limited a candidate's total spending for Vermont state representative races to $2000 for both the primary election and general election put together — is not that money is speech. Rather, it's that restrictions on spending money to speak are restrictions on speech, and "money is speech" is, I think, a misleading way of expressing this claim.

Just consider some analogies. Would we say "money is abortion"? I doubt it, but a law that banned the spending of money would surely be a serious restriction on abortion rights (whether or not you think that the Court was right to recognize such rights). A law that capped the spending of money for abortions at a small amount, far smaller than abortions often cost, would likewise be a burden on abortion rights, and dismissing this argument as "it is quite wrong to equate money and abortion" would be unsound.

Likewise, we wouldn't say "money is education," or "money is lawyering." Yet a law that capped private school tuitions at $2000 (not just limited the amount of government-provided scholarships, but capped private spending by parents for tuition) would be a serious, likely unconstitutional, burden on the right to educate one's child at a private school. Likewise, a law that barred wealthy defendants from spending more than $20,000 — or even $200,000 — for assistance of counsel would violate the Sixth Amendment. Even if for some reason you thought that these laws should be upheld, the response that "it is quite wrong to equate money and [education / lawyering]" would be an unsound response.

Similarly, we wouldn't say "air travel is speech," or "computing power is speech." Yet surely a law that would limit the use of air travel or computers in political campaigns would be understood as a serious restriction on speech.

I also have differences with other aspects of Stevens's opinion, as well as with other opinions, including the Thomas/Scalia concurrence, but I lack the time to discuss them here. For now, I just thought that "money is speech" / "money isn't speech" is a common enough catchphrase in these debates (going all the way up to the Supreme Court) that I thought it might be helpful to speak briefly about it. For my criticisms of the Thomas/Scalia position, see Part III of this article.

Note also this amusing summary of the opinions, by Allison Hayward (Skeptic's Eye).

A.S.:
I've always thought of it this way: if one believes that "it is quite wrong to equate money and speech", then one ought not to have a Constitutional problem with a law that prohibited the New York Times Company (to pick one media company out of a hat) from spending more than, say, $2000 per year. After all, if money isn't speech, then limiting the amount of money the Times can spend isn't limiting the Times' speech right? Now, I don't know how much news the Times is going to be reporting if it could only spend $2000. (How many reporters can you hire for $2000 anyway? Not to mention that I doubt you could purchase all that much newsprint for whatever's left over after you pay the reporter.) Of course, reducing the number of classified programs disclosed by the Times is only an added bonus to the compelling governmental interest in reducing peoples' exposure to the noxious Paul Krugman. But that's beside the point - if you think that limiting spending of money isn't limiting speech, then ipso facto you don't think that a law that prohibited the New York Times Company from spending more than, say, $2000 per year limits the Times' speech.
6.26.2006 3:28pm
anonymousss (mail):
the link to your article is broken.
6.26.2006 3:37pm
lucia (mail) (www):
I suspect the link should be:

http://www.law.ucla.edu/volokh/election.htm

Clearly, money is not, literally speech. It can be spent on many things. Equally clearly, limiting the amount of money one can spend to bring your speech to the attention of others limits what we mean by "free speech."

Both are so obvious, it's amazing to discover that someone needs to say it.
6.26.2006 5:08pm
jsamples (mail):
The phrase "money is speech" is not a serious proposition. It is a rhetorical gambit designed to discredit the idea that restricting money can restrict speech. If you take the claim literally, it is absurd to say that money is speech because it is not; it is currency or whatever. There are many rhetorical gambits like this in campaign finance debates. The debates are old, the politics is populist.
6.26.2006 6:33pm
Justin (mail):
I don't think spending the money on yourself, or indeed pooling the money together as a group, where that group has a specific message to disseminate, is neccesarily the same as handing money to a candidate to use as he will, including, for instance, to pay FEC fines, obtain signatures, pay for the candidate's travel and fundraisers, etc.

For those reasons, the analogy is not exact. I assume even if you call it speech, you do not believe that it should be absolutely protected, even in the face of overt corruption - so getting it to be called speech isn't that big of a problem anyway. Someone (like Stevens) who is a structuralist should understand that there will be some incidental cost to "speech" by campaign restrictions, and that Courts must strike the balance, as they have.
6.26.2006 7:55pm
Brett Bellmore (mail):
I see plenty of "overt corruption" in connection with campaign finance, but it's mostly on the part of incumbants enacting self-serving laws that violate the Constitution they swore an oath to defend.

A constitution which doesn't dictate a balancing test when it comes to freedom of speech, but instead simply declares that Congress shall make no law... Which stands for the proposition that this whole area is so fraught with conflicts of interest on the part of the government, that it should simply be declared off limits.
6.26.2006 9:27pm
D. Fox (mail):
I thought the most notable -- and most disheartening -- part of Stevens' dissent was his citation of historical examples to prove his claim that money is not necessary for effective speech. That passage should stand forever as the locus classicus of law-office history.

First, Stevens cites Bryan's "Cross of Gold" speech. But that speech was delivered to the 1896 Democratic National Convention. It costs money to put on a Presidential nominating convention, or so I'm told. And the speech wouldn't have made nearly the same splash if it hadn't been given at the convention.

From the same campaign, Stevens cites McKinley's "front porch" speeches. Let me introduce him to a gentleman by the name of Mark Hanna. Hanna raised and spent over 3.5 million dollars to elect McKinley in 1896. (That's just what he reported; an unofficial estimate had him spending seven million.) What did he spend it on? Campaign headquarters in Chicago and New York; ghostwriters and publicity experts; 1400 surrogate speakers; and a massive direct mail campaign. As Francis Russell writes, "Almost by instinct he developed the first political advertising campaign, selling McKinley to the public like soap or tobacco." So much for Justice Stevens' romanticized front porch..

Next, Stevens gives us the Lincoln-Douglas debates. Gee, how does he think Lincoln and Douglas got to nine different debate venues scattered all over Illinois? Maybe he thinks they walked. I bet they didn't. I would guess they took the train. Railroad tickets aren't free &mdash or if they were, that would be considered an in-kind contributiion from the railroad, and would have counted agaisnt spending and contribution limits had there been any such things then.

Finally, he cites the Kennedy-Nixon debates as a "free" method of campaigning. Actually, Kennedy and Nixon were the recipients of a massive in-kind contribution from the networks. Airtime, broadcasting facilities, labor &mdash these may have been free to the Kenndy and Nizon campaigns, but somebody paid for them.
6.26.2006 10:22pm
guy in the veal calf office (mail):
For what its worth, its not illegal to visit Cuba or read a book by an Iranian, its illegal to spend money in Cuba or to acquire an Iranian "asset". In these cases a ban on money transfer is not a ban on travel (although where tire meets the road, at an INS station with $6.75 an hour psuedo-cop interpreting the law, it is) and a ban on paying to acquire books from Iranian publishing houses is not a ban on acquiring those books.
6.27.2006 12:29am
Justin (mail):
Right, Brett, because incumbents were having such problems outraising their opponents before BCRA, you know, given that they actually could do the whole quid pro quo thing.
6.27.2006 1:27am
katzxy:
There are no such limits on say ads to promote a product, or even encourage daily flossing. However when the content of the ad becomes political (e.g. vote for Representative Whindy) the restriction kicks in. So it is the content of the speech that triggers the restriction, and campaign finance therefore is a regulation of speech.

Working the spending end of it makes it harder to make the case above in a way that can stand up against the counter attack sure to be mounted by supporters of campaign finance restrictions, and easier to pretend that controlling speech is not the goal.
6.27.2006 3:39am
Paul Gowder (mail):
I think it's long past time that people started taking a more nuanced view of the whole "money -- speech or not speech" thing. Here's my off-the-cuff suggestion. Money is to speech as land is to intellectual property.

Stop staring in incomprehension and disgust at that last sentence for a second and let me explain. The big distinction between intellectual property and regular property, noticed at least since Jefferson, is of course that intellectual property is nonrivalrous. My reading a book does not prevent you from reading a book. By contrast, land is rivalrous. My renting an apartment prevents you from renting that apartment.

Similarly, speech can be understood as analagously nonrivalrous. My speech does not prevent you from speaking. (At the margins, as the limit of attention is reached, perhaps it does. But generally, it doesn't.)

My purchase of access to audiences, on the other hand, is rivalrous. If I buy a prime-time TV slot, you don't get to have it. If I monopolize the prime-time TV slots, your access to audiences is seriously impaired. This is (one of the many and much more complicated reasons) why we have a two-party system, as opposed to a ten-party system.

The increased risk of monopolization implies an increased right to regulate.

Non?
6.27.2006 12:36pm
lucia (mail) (www):
Paul,
If the concern were monopolizing certain avenues like tv stations, for communication, the law could be tailored to limit that specific activity. Or the law could insist tv stations who sell political advertizing grant some free air time to all candidates who are on the ballot.

Based on quick reading of the Wall Street Journal's editiorial page, this law did not tailor things that way. It simply imposed extremely low spending limits specifically on speech so low they curbed the ability of candidates to air their views.

Extremely low limits on expenditures to disseminate political views is restricting speech.
6.27.2006 6:05pm
Paul Gowder (mail):
The concern isn't *directly* monopoly, but indirectly monopoly. The risk of being shut out of the attention market drives costs and expenditure out, shutting out the less-able to pay.
6.27.2006 9:10pm
lucia (mail) (www):
Paul,
The less-able to pay will not be shut out, if, as I suggested, the laws are written to provide some free air time to all candidates on the ballot.
Lucia
6.27.2006 10:07pm
d. fox (mail):

There are at least three flaws in Mr. Gowder's reasoning.

First, there is simply no chance that anyone is going to "monopolize" the available TV time.

Second, as lucia points out, a restriction on spending in general is way overbroad as a solution to the claimed problem. If the proiblem is that a big spender may monopolize TV or radio time, why should spending on other forms of advertising (e.g., direct mail, which is non-rivalrous), or on non-advertising campaing expenses (salaries, electric bills, etc.) be subject to limits?

Third, the "risk of monopolization" is not, in fact, the reason why spending and contribution limits have been adopted. The principal justifications for limits have been the danger of corruption; a desire to curb "negative" ads; and a generalized desire to limit the influence of money in politics.
6.28.2006 3:10am
Q (mail):
I rather suspect that the argument 'money is liberty' works better than 'money is speech'.

How I spend my money and where I spend my money are intrinic expressions of liberty.

Government does place restrictions on certain transactions under certain circumstances, yes. But the solution is not to choke off this piece of commerce.

I further suggest that all transactions involving public money-- and money to current, past or potential future public figures-- simply be made transparent in the light of day (under threat of a draconian penalty or two for non-compliance).
6.28.2006 9:08am
Paul Gowder (mail):
d. fox -- interesting point re: the other forms of advertising. I'm working on a general theory to cover this kind of stuff (a standing project of mine) but that's something to think about.
6.28.2006 12:03pm
MK (mail):
What type of person are you ?

The Love or Money test
Find out if you are more enamored with money or love.

I was more toward to money. :(
6.28.2006 6:33pm
J Swift. (mail):
So if money is speech, then I should be able to donate money to any group I want, including those designated as terrorist organizations, right? I can certainly speak in support of their ideas and goals, so financial support is just increasing my speech.
6.29.2006 4:10am