Readers of the McCutcheon opinion likely realize I’ve (so far) omitted the Court’s plainly stated position that political giving is a form of, not just a means to, political speech. Quoting Buckley v. Valeo, the 1976 Supreme Court case that set key precedents regarding campaign contribution limits and the First Amendment, McCutcheon affirms that a campaign contribution “‘serves as a general expression of support for the candidate and his views’.”
But McCutcheon also preserves the rather limited conception of money as speech that Buckley proposes. Specifically, McCutcheon does not object to the claim in Buckley that while a contribution is “a general expression of support,” a contribution “does not communicate the underlying basis of that support.” McCutcheon likewise leaves unchallenged this statement from Buckley:
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. [emphasis added]
In other words, Buckley asserts and McCutcheon accepts that a campaign contribution is not an argument (“underlying basis of…support”) nor a discussion and thus, I would add, not equal to speech in the familiar sense of, say, an opinion column or a public forum. Yet political giving remains a kind of political expression in at least the narrow sense of a “general” or “symbolic expression of support” that Buckley identifies.
In fact, as the saying “put your money where your mouth is” reminds us, a show of financial support for a cause or candidate can prove more authentic than words alone. It can also prove more effective at promoting that cause or candidate, as Maurer and Samuelson remind us with their point that political giving enables more substantive forms of speech.
Opponents of McCutcheon might worry I’ve overlooked some troubling consequence of conceding that “money” (or, more precisely, contributing money to political candidates or causes) is a constitutionally protected means to—even mode of—speech. For instance, they might think this concession plays into the reasoning of Justice Clarence Thomas, who argued that McCutcheon could have gone much further.
Contrary to the Court’s opinion, Justice Thomas argued that contributions to candidates, parties, and PACS should face as little restriction as those entities’ expenditures now do under the First Amendment. A candidate, for instance, faces no limit regarding how much she can spend, provided she doesn’t use public funding, such as the Presidential Election Campaign Fund. Justice Thomas contends that an individual should likewise face no limit regarding how much he can give to a candidate.