Stop Saying Money Isn’t Speech

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Justice Breyer and three fellow dissenters, forming the minority, rejected the plurality’s narrow definition of corruption. On their view, that definition includes only acts “akin to bribery” and excludes “privileged access” as well as “undue” and “pernicious influence” by wealthy donors. Like the plurality, the minority expressed concern for the responsiveness of government, particularly as a means of representing and enacting public opinion. Justice Breyer wrote:

[T]he First Amendment advances not only the individual’s right to engage in political speech, but also the public’s interest in preserving a democratic order in which collective speech matters … Corruption breaks the constitutionally necessary “chain of communication” between the people and their representatives … Where enough money calls the tune, the general public will not be heard. [original emphasis]

On this understanding of corruption, the now defunct aggregate limits don’t violate the First Amendment. Instead, such limits “strengthen…the First Amendment” by helping ensure the speech of a few doesn’t leave representatives deaf to the speech of the many.

The two sides agreed that quid pro quo counts as corruption at the level of particular elected officials. But they disagreed on what counts as corruption at the level of the political or democratic process in general. At that general level, increased individual influence or access for large contributors, especially when it decreases popular influence or access, is corruption according to the dissent, but it is NOT corruption according to the Court’s ruling.1

Which side is right? I take no position here, as I’m not writing to resolve that debate. I’m writing to redirect individuals to that debate, particularly those who criticize McCutcheon on the grounds that “money isn’t speech.” I do take a position on that objection: it is mistaken. In fact, the deeper issue is not whether money is speech. Money itself is not the real concern. Rather, the real concern is the political corruption money can cause and how that corruption is defined.

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Notes:

  1. In MCutcheon, see page 17 of the “Opinion of Roberts, C.J.” for a rebuttal of the dissent’s argument about collective speech.