Stop Saying Money Isn’t Speech

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So, perhaps proponents of the “money isn’t speech” objection to McCutcheon fear that if money is speech (in whatever sense), an individual then has a First Amendment right to give and spend without limit in pursuit of political power.

Despite Justice Thomas’ push to remove all contribution limits, the Court ruled in McCutcheon that the First Amendment does not protect campaign contributions from the base limits—that is, the per-recipient contribution caps. For instance, while a candidate is permitted to spend as much as he can privately raise, an individual still cannot give that candidate more than $2,600 per election.

Protected speech is subject to government regulation. Deferring to Buckley, the McCutcheon decision affirms that

The right to participate in democracy through political contributions is protected by the First Amendment, but that right is not absolute … Congress may regulate campaign contributions to protect against corruption or the appearance of corruption.

Departing from Buckley, the McCutcheon decision denies that the aggregate limits—that is, the caps on an individual’s total combined contributions—are needed to prevent evasion of the base limits, where the latter, according to the Court, remain a justifiable anticorruption measure. McCutcheon holds that the aggregate limits simply violate an individual’s First Amendment rights, hence their repeal.

The justices disagreed about this holding. In the course of that disagreement—with Chief Justice Roberts  delivering the Opinion of the Court and Justice Breyer penning the dissent—the justices did not debate whether First Amendment speech can be defined to include campaign contributions.

However, the justices did debate whether the corruption that contribution limits are tasked with preventing can be defined to include anything other than quid pro quo (roughly, “this for that”) exchanges of money for official acts, such as a vote to pass a law.

Chief Justice Roberts and three other justices, forming the plurality, maintained that the First Amendment permits contribution limits to target quid pro quo and nothing more.1 Justice Roberts wrote:

[T]he risk of corruption arises when an individual makes large contributions to the candidate or officeholder himself [but not to his political party].

On this understanding of corruption, the base limits appear perfectly fitted to preventing corruption or its appearance. Lifting the aggregate limits might increase the political influence, access, or gratitude that can accrue to a single individual. But the plurality argued that none of those gains amounts to corruption, quid pro quo or otherwise. Rather, those gains signal the “political responsiveness” that individual participants in the “democratic process” should expect from their representatives.

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Notes:

  1. Justice Thomas concurred with lifting the aggregate limits on contributions, but he did not join the Court’s opinion.