Stop Saying Money Isn’t Speech

Money as Means, Match, and Menace to SpeechIn McCutcheon v. Federal Election Commission, the U.S. Supreme Court struck down limits on the total amount an individual can contribute to political candidates, parties, and action committees. The 5–4 decision said that “aggregate limits” violate the First Amendment’s protection of political speech and political association. In contrast, “base limits” lawfully restrict how much an individual can give to a single candidate, party, or action committee (though not a “Super” PAC). On top of the caps set by the base limits, aggregate limits require an individual either:

  1. Restrict the number of recipients she supports, if she chooses to maximize how much she contributes per recipient.
  2. Restrict the amount she gives per recipient (within the base limits), if she instead chooses to maximize how many recipients she supports.

For instance, say an individual tried to stay below the $48,600 aggregate limit on contributions to federal candidates that would have applied to the 2013–2014 elections. Choice (a) could be giving the base limit of $2,600 per candidate to 18 candidates. Choice (b) could be giving $100 to 468 candidates (435 House and 33 Senate). In the Court’s opinion, the restrictions in either option impose an unconstitutional constraint on free speech and association. Consequently, the Court lifted the aggregate limits.

Popular debate over the Court’s decision has tended to focus on freedom of speech. Opponents of the ruling often say it mistakenly equates money and speech. This objection, however, mistakenly targets the definition of speech. The definition the Supreme Court disputed, and that both critics and supporters of its ruling should debate, is the definition of corruption.

First Amendment challenges to campaign contribution limits might seem vulnerable to the “money isn’t speech” objection. But this vulnerability strikes me as illusory. Consider the following argument.

  1. Campaign contribution limits restrict money given to political candidates, parties, and PACs.
  2. First Amendment challenges to campaign contribution limits say that those limits unconstitutionally restrict speech.
  3. Therefore, First Amendment challenges to campaign contribution limits equate money and speech.

Both premises are true. But despite any appearance to the contrary, the conclusion can be false. For campaign contribution limits to abridge freedom of speech, money doesn’t have to equal speech; it only has to enable it.

Justice Stephen Breyer, author of the dissent in McCutcheon, has affirmed that money enables speech, while also acknowledging the absurdity of saying money literally equals speech. In a 2005 interview, roughly two years after the Supreme Court addressed First Amendment challenges to campaign finance regulations in McConnell v. Federal Election Commission, Justice Breyer remarked:

Of course, money is not speech; money is money. Of course, money is speech; it enables speech. Both of those statements are true.

Supporters of the McCutcheon ruling also think money “is” speech in the sense of enabling it. Writing in the Seattle Times, William Maurer, a First Amendment lawyer, opined:

[M]oney enables speech … In order to communicate with voters and for voters to hear from candidates, it takes money.

Robert Samuelson, Washington Post opinion writer, penned a column titled “In politics, money is speech.” The “is,” however, is explained in terms of money’s necessity for, not equivalence to, speech.

Political speech is a public phenomenon. It aims to affect how people behave. It requires money to hire campaign staff, build a Web site, buy political spots and the like. Penniless politicians can’t easily communicate. Limiting my ability to contribute to candidates and parties restricts my First Amendment rights.

Maurer and Samuelson both argue that political speech, to have a public (read: political) impact, requires funding. Further, Samuelson suggests that when an individual funds her favored political players, she empowers them to express her political views. Thus, on the views expressed by these two authors (and seemingly Justice Breyer as well), limiting an individual’s political giving restricts her political speech and the speech of those to whom she would otherwise give.