Balkinization  

Sunday, June 29, 2008

Money talks, but is it speech?

Guest Blogger

Deborah Hellman

Justice Stevens, in the parts of his opinion in Davis v. FEC (decided Thursday) in which he writes alone (Parts I and III), argues for a reexamination of the part of First Amendment doctrine which treats restrictions on campaign expenditures as direct restrictions on speech. Instead, Justice Stevens argues, restrictions on the spending of money are restrictions on conduct that has incidental effects on speech – like time, place and manner restrictions – and are thus subject to more lenient review. The so-called “millionaire’s amendment” at issue in Davis highlights the absurdity of the Court’s current approach. Justice Alito’s majority holds that raising the contribution limits applicable to the opponents of self-funded candidates burdens the self-funder’s right to spend money (in that it becomes less advantageous to do so) and thus constitutes an unconstitutional restriction on speech.

If spending money really is close enough to speech to warrant strict First Amendment scrutiny, this chain of reasoning makes sense. But it is rather attenuated logic to suppose that raising the contribution limits on his opponent actually constitutes a violation of the millionaire’s right to speak. So, let’s take up Justice Stevens’ invitation and go back to first principles.

Why think a restriction on spending money is a direct restriction on speech? Spending money is obviously not speech itself (no one doubts that). But it is a vehicle, indeed an important vehicle for speech. If one cannot spend money to speak, how would one purchase an advertisement, print a campaign brochure, etc. Moreover, as Eugene Volokh has argued, the right to spend money is crucial to the protection of other Constitutional rights. The right to counsel, for example, would not be worth much without the attendant right to pay for a lawyer.

But the important point to remember is that money is useful to all sorts of ends – both constitutionally significant and insignificant. Does the usefulness of money mean that spending money in connection with a constitutionally protected right is always as aspect of that right, deserving of special protection by the Court? Sometimes spending money in connection with a constitutional right is correctly considered an aspect of that right (as in the right to counsel case) but not always. Following Lawrence, Eisenstadt, and Griswold, one might say there is a constitutionally protected right to sexual intimacy . But this articulation of the right at issue need not imply that one has a right to spend one’s money achieve it (prostitution). One has a constitutionally protected right to a jury trial but this right does not include within its ambit the right to spend one’s money to bribe the judge or jury. Spending money helps one to achieve all sorts of ends, including some constitutionally protected rights. In order to decide if the right at issue includes the right to spend money to achieve it, further inquiry is required. So my first point is that current doctrine is flawed in failing to provide an argument for why spending money is an aspect of the constitutionally protected right.

What principles should guide this inquiry? I think it would be helpful to look at the sorts of transactions that we remove from the market economy – “blocked exchanges,” in Michael Walzer’s terms. Buying and selling of babies, organs, sex, parental rights and more are forbidden. So too buying political favors and legal outcomes (bribery of public officials, judges, jurors). In times of military draft, buying a substitute is no longer allowed. And there are others. There are at lest two different types of concerns in play here. First, sometimes we worry about how buying and selling of the good changes the way we value it (so-called “commodification”). Second, the buying and selling of something sometimes violates some other important value (democracy, equality, justice, etc.). We might then compare the list of rights in which we protect the spending of money to achieve them (right to counsel) with those that we don’t (jury trial). I take it that we think that buying a high priced lawyer won’t corrupt justice in the way that paying off the judge will. Fair enough.

So now what of money spending and speech? Is money-spending a part of speech? Of political speech? We can now see why restricting the spending of money to publish a book, for example, is different from campaign finance restrictions. In the case of the first restriction, there is no other important competing value. However, restrictions on campaign expenditures are different. Spending money (on one’s own campaign or the campaign of others) may facilitate one’s expressive activity but ought not be seen as an integral part of it because other important values (here democracy and equality) suggest reasons for limiting the reach of the market to this domain. Stevens makes precisely this sort of argument, quoting a passage from an article by Cass Sunstein: “It seems uncontroversial that ‘there is no good reason to allow disparities in wealth to be translated into disparities in political power. A well-functioning democracy distinguishes between market processes of purchase and sale on the one hand and political processes of voting and reason-giving on the other.’” (citing Sunstein, Political Equality and Unintended Consequences, 94 Colum. L. Rev. 1390, (1994))

There are clearly arguments one could make for the claim that campaign spending is more like buying a lawyer than bribing the judge. The key point is that this is the right question to ask. The Court too quickly concludes that restrictions on spending money must be treated as direct restrictions on speech because the ability to spend money is often how a person gets her message out. Because spending money is useful toward almost any aim, this is not a relevant observation. Rather one must articulate a theory of when constitutional rights must include the right to spend money to achieve them and when not. Once we note that sometimes facilitation is protected and sometimes not, we realize that an argument is needed to determine whether spending money to achieve the right is an aspect of that right. Where a good argument can be made for blocking a particular transaction (like prostitution), it is likely that spending money in connection with that right will not be constitutionally protected. Campaign finance may be enough like voting and serving in the army to suggest that a commitment to democracy here provides a reason to see spending money as not within the scope of the constitutionally protected right to speak.

This argument is presented in more detail in my “What Money Can and Cannot Buy”. I am working on a more complete account currently.

Comments:

"Like time, place and manner restrictions "

Of course, the Constitution actually explicitly delegates to Congress the authority to regulate the "time, place, and manner" of elections. Unlike campaign spending... Maybe the powers the Constitution actually gives Congress are more firmly grounded than the ones it doesn't?

"Why think a restriction on spending money is a direct restriction on speech?"

Because it's a regulation specifically on money spent on speech. And a particular sort of speech, at that. Suppose a law were passed limiting how much money you could give somebody to publish a newspaper; Would that, you think, have and freedom of the press implications.

It's not regulation of money, it's regulation of speech. If the money were going to be spent on wild parties and fancy dinners, Congressional incumbents wouldn't give a damn. They regulated it because it was going to be spent on speech and printed matter aimed at unseating THEM.
 

It isn't just speech. It is also association. Money spent on campaigns and toward parties as a whole is not simply a matter of proclaiming a message but also supporting parties and movements (which involves speech plus). So, the fact money might go to support services, not speech directly, in various cases doesn't end matters.

So, unlike some, I don't really see a clear line between spending and contributions on that end. It is more a matter of the interests the laws are meant to further.

As to the dark side of giving money, Scalia, for one, isn't loathe to discuss that. It surely isn't limited to this context though. And, there are other "less restrictive" means that can be used in various cases to handle them.

As to congressional authority, what are the contours of regulating elections? Does it stop on election day? Does 'holding' elections only concern that day itself, or campaigns overall? And, on enumerated powers grounds alone, concerns overspending threatens democracy and equality also factor in here too.

You can argue for a narrow reading, but seems to me that it is more a 1A issue, except as to state campaigns in some ways.
 

Your post posits various analogies, but the closest, IMO, is the right to counsel. As you acknowledge, “the right to counsel, for example, would not be worth much without the attendant right to pay for a lawyer.” You then suggest that the reason that spending on lawyers cannot be restricted is “we think that buying a high priced lawyer won’t corrupt justice in the way that paying off the judge will.”

Who exactly are “we” in this sentence? There are plenty of people who think that high-priced lawyers corrupt justice because (a) that is why one hires a high-priced lawyer in the first place and/or (b) it is unfair that some criminal defendants can afford high-priced lawyers, while others cannot.

Perhaps everyone would agree that this (alleged) corruption is not exactly the same as buying off a judge, but that is somewhat beside the point. It is also true, presumably, that everyone would agree that spending a lot on a political campaign is not the same as bribing voters, but that doesn’t stop people from trying to regulate the former.

So the question is whether it would be constitutional for Congress to limit the amount that a criminal defendant could spend in his or her defense on the grounds that values of “democracy and equality” so require. If the answer depends on how one weighs these values versus the burden imposed on the right to counsel, then one wonders why the Court, rather than Congress, should be making that decision. And I think it is fear of that kind of slippery slope that would cause the Court (including, I suspect, Justice Stevens) to hold that such a law was a violation of the defendant’s right to counsel without attempting to balance the interests involved.

Which is a long way of saying that I think the Court’s money equals speech framework is a way of avoiding the same kind of slippery slope that could end up with all kinds of money-based restrictions on speech. Brett gives one example, a law that limits how much money one could invest in a newspaper (or how about a law that limits how much newspapers can charge for political ads?). How about a law that says you cannot spend more than $50 on a computer if you are going to use it for purposes of political speech?

Speaking of equality, you should talk to Jack Balkin about how some people (generally those who can afford law degrees from high-priced universities) get to post their ideas on the front page of Balkinization, while ordinary Joes (no offense, Joe) have to post in the lowly comment section. This undervalues our contributions and could possibly injure our self-esteem. Surely this is a violation of the ideals of democracy and equality upon which this site was founded.
 

What if the Government decided that speech at universities was far too left wing and enacted legislation prohibiting payment for speakers at campus.

Would this regulation of money be an infringement of free speech?

It would appear that whether finance equals speech depends on whose speech is being censored.
 

If money is speech, then I have very little to say.
 

It isn't just speech. It is also association. Money spent on campaigns and toward parties as a whole is not simply a matter of proclaiming a message but also supporting parties and movements (which involves speech plus). So, the fact money might go to support services, not speech directly, in various cases doesn't end matters.

The distinction is that association doesn't depend on quantity. If you are allowed to contribute $2,300 to McCain or Obama, you are able to associate with them just as if the number were $4,600 or $46 million.

In contrast, the more you spend on speech, the more you speak.

Thus, Buckley was rightly decided.
 

This comment has been removed by the author.
 

i agree wholeheartedly that political donations are not speech and that buckley was wrongly decided.

stephens quote of sunstein hits the nail right on the head when he says, roughly, that wealth should not necessarily translate into greater political access.

second, i would over rule the footnote confering constitutional rights on corporations. seems to me that their participation in the political process should be heavily regulated so as not to give them the undue influence they so unquestionably hold now.

i liked this so much i'll quote it again because it seems as if many of the commentators have yet to address this core point.

It seems uncontroversial that ‘there is no good reason to allow disparities in wealth to be translated into disparities in political power. A well-functioning democracy distinguishes between market processes of purchase and sale on the one hand and political processes of voting and reason-giving on the other.
 

"Second, i would over rule the footnote confering constitutional rights on corporations. seems to me that their participation in the political process should be heavily regulated so as not to give them the undue influence they so unquestionably hold now."

The simple problem with this is that people don't get together into corporations such as the NRA or ACLU for yucks. They do it because the governments' own tax and liability laws make doing anything on a large scale without adopting the corporate form risky to impossible. It would be strange if the government could force people into a particular form of organization, and then use the very fact they adopted that form to avoid respecting their rights.

Corporations don't have the rights of people because they are people. They have the rights of people because they're made of people. There's nothing there but the people, you can't deny them rights without denying people rights.
 

a corporation exists to make money. i don't see why the fact that they are composed of people is any sort of compelling reason to grant corporation, who are certainly not people, the rights of those people themselves.

furthermore, if they want to spread the risk out, that's simply one of the prices you pay... ie. the ability to treat your business as an extension of yourself, rather than a large group of shareholders engaged in a speculative venture.

that's a weak argument brett.
 

Sure, money is speech, and money is power, and more money is more power to speak, to drown out other speech.

So we have decided, rightly or wrongly, that in this Nation money enjoys the power to drown out other speech.

It's highly effective and it wins elections. Thus leading to more power, more money, more speech, more drowinging out, then more power, and so on.

I'm not sure this was exactly what the Founding Fathers had in mind.

There are ways that speech with less money can be heard. But practically speaking, money is power to give speech a big advantage.
 

I take a more instrumental view than Brett does about why corporations have free speech rights, but I get to the same place.

One can imagine a philosophical schema where there are two broad consequentialist rationales for free speech rights-- that they allow the individual to attempt to vindicate his or her needs and preferences, and because they are good for society because they create a marketplace of ideas that should lead us closer to truth.

Corporations should have free speech rights because, like individuals, corporations have needs and preferences that would benefit from the exercise of free expression, and because corporate speakers can make a contribution to the marketplace of ideas.

Some people think of corporate speech only in terms of, e.g., polluters and tobacco companies trying to convince the public that what they are doing is not dangerous, but plenty of corporate speech is clearly beneficial to society. A lot of advertising directs our attention to products that improve our daily lives. Corporate speech can remind us that regulations could put people out of work. Corporations wishing to burnish their PR credentials often promote charities (think Ronald McDonald House).

So I don't think it is as simple as "corporations are made up of people", as Brett said. But I get to the same place-- recognition of corporate free speech rights vindicates the purposes of the First Amendment just as recognition of individual free speech rights does.
 

no one has a constitutional right to form a corporation.

a corporation is nothing more and nothing less than a combination of individuals for the purposes of making money and limiting risk.

we already have commercial speech which is the only type of speech wherein you may be able to trust a corporation to tell the truth, thanks to government regulation.
 

I just find Ms. Hellman's logic ridiculously flawed. Take this little passage:

The Court too quickly concludes that restrictions on spending money must be treated as direct restrictions on speech because the ability to spend money is often how a person gets her message out. Because spending money is useful toward almost any aim, this is not a relevant observation.

Now how does this argument work? I guess something like this:

Spending money is useful toward almost any aim, good or bad,

so spending money in and of itself isn't something one always has a right to do,

so observing that spending money is often (indeed, always) how a person gets their message out is not a relevant observation.

See the flaw in this argument? The Court isn't just observing that politicians are spending money in some kind of mysterious campaign-related way and saying, "it's related to the campaign, so it's speech," they're observing on what they spend it, namely, getting their message out, and that is a protected aim. So the whole argument makes no sense. Yes, you can use money to bribe judges or buy prostitutes, but running an ad on TV isn't the functional equivalent of either, it's political speech - unless, of course, you think that voters are so dumb that exposing them to ads is the equivalent of buying their votes. The First Amendment, fortunately, doesn't allow for such condescension on the part of would-be speech regulators.
 

"a corporation is nothing more and nothing less than a combination of individuals for the purposes of making money and limiting risk."

No, it's a combination of individuals for the purpose of accomplishing something while limiting risk. That something doesn't have to be making money, there's a specific class of "non-profit" corporations, to which, (As I pointed out!) the ACLU and NRA, to name just a couple, belong.
 

No, it's a combination of individuals for the purpose of accomplishing something while limiting risk. That something doesn't have to be making money, there's a specific class of "non-profit" corporations, to which, (As I pointed out!) the ACLU and NRA, to name just a couple, belong.

And then there are corporations such as the New York Times. Yes, it's a corporation, and yes, it exists to make money. But somehow campaign finance "reformers" -- including the NYT itself -- never think that the laws should apply to their expenditures.
 

brett,

non-profits aside, but, to answer your question, I think if corporations were denied the ability to engage in political speech, the ACLU and NRAs of the world would find some other form of association which would be equally suitable.

why should a for profit corporation be given the right to engage in political speech, with the results we see today, given that their only purpose is to game the government into increasing their bottom line.

a corporation has less stake in our democracy than a citizen.

you don't limited liability to speak your mind.
 

david,

i would argue there is a difference between a media corporation's right to make money publishing freely and their ability to make campaign contributions.
 

i would argue there is a difference between a media corporation's right to make money publishing freely and their ability to make campaign contributions.

Garth, that's not an illegitimate argument, but the problem is that McCain-Feingold et al. do not limit their restrictions on corporations to "making campaign contributions." They restrict speech directly, limiting, for example, ads that can be run near elections which mention candidates' names.
 

"why should a for profit corporation be given the right to engage in political speech, with the results we see today, given that their only purpose is to game the government into increasing their bottom line."

Because it's not that corporations have the right to engage in political speech, it's that the government is barred from restricting it.

Because the government, by it's laws and regulations, essentially forces people into the corporate mode of organization. Let me lay this out for you:

Step 1: The government enacts laws making newspapers, (Which have to make money to stay in business.) uncompetative unless they're organized as corporations.

Step 2: The government strips corporations of their 1st amendment rights.

Result: The 1st amendment freedom of the press has just been abolished, because nobody can AFFORD to operate a newspaper in a fashion where they retain 1st amendment rights.

I repeat: The government can't just pass laws to push people into organizing in a particular way, and then use the fact that they end up organized that way as an excuse to strip them of their rights. Basic liberties can not be permitted to be that easily circumvented.
 

Brett,

Perhaps you feel government should not be allowed to ban all corporate political donations, but there is no compelling reason why they cannot or should not.

Every citizen has a stake in this country. Corporations exist solely to make money, be competitive, whatever you want to call it. I don't want to get into press organizations, which may have separate constitutional rights, but what stake does shell have in my country and why should their voice be louder than mine?

corporations are psychopaths and their advice on how to run a country has created many of the problems we see today.

i feel there is no textual basis in the constitution for granting money making schemes a voice in how this country is run.
 

I think you're severely misconstruing the argument in favor of restrictions on campaign expenditures being a restriction on speech by campaigns. The argument isn't that restricting money spent on an enterprise that involves a right is necessarily a restriction on the right itself, but that speech is the heart of running a campaign for public office. A campaign's operations involve shuttling the candidate and high-profile supporters around to give speeches, running TV ads (and non-TV ads), and having organizers try to gin up support for the candidate and tell people to vote on election day. All of those things cost money. In this sense, a campaign is like a commercial newspaper: both exist for non-speech purposes (making money, getting someone elected) and both engage in some non-speech activity, but speech is the heart of their operations.

On top of that, the purpose and effect of restricting campaign expenditures is to restrict political advertising (a form of speech). Expenditure restrictions may be defensible as a matter of public policy, but I find it hard to see how they could fail to constitute restrictions on speech.

I have the same thing to say about the millionaire's amendment, incidentally. Although facially not a restriction on speech, its purpose and effect is to prevent campaign expenditures (which are about speech, as discussed above) by self-funded challengers by guaranteeing that if they self-fund the incumbent will suddenly be awash with cash. So while not a speech restriction in form, it is one in substance.
 

I offer the following argument against the designation of money as a form of speech:

If I ask someone to do me a favor, I have exercised my right to speech with respect to him. He may or may not decide to act on my request. As anyone knows, if I make the same request and give the man $100, he is much more likely to follow through. Why? Because the money has increased the impact of my speech in a dramatic way. The money, thus, is not "speech"; but rather, the money works to amplify my speech.

An analogy can be drawn by considering another common way to amplify speech in order to increase its impact on people. Consider a soap box orator who uses a sound amplifier (attached to a microphone) to increase the impact of his speech in the park. Now, no one would be so confused as to claim that the power amplifier attached to the microphone is "speech". Similarly, we should be able to clearly see that, like the plugged in amplifier, money is "Power", not "Speech"! To drive this point home, imagine if I gave a man $100 and, this time, said nothing at all. Certainly, the man would be most grateful, and certainly he would likely be eager to do me a favor in return. But unless I actually say something, he will not know what it is that I wish him to do. In short, he will do nothing but wait for me to finally communicate something. (Using the prior analogy, it is like having the sound amplifier switched "on", but with nothing said into the microphone.) Only when I specifically communicate something has there been any "speech".

Whether verbal, written, or even symbolic, speech, by definition, requires content (for example, even artistic dancing has some symbolic content). Money, in and of itself, contains no communicative content! Thus, money cannot be conceived of as any form of speech. Money is a powerful motivator because, most succinctly stated, "Money is Power". There is certainly no constitutional right for anyone to use overt power to get his way. To suggest this is, in effect, to argue that "might makes right" has, somehow, been written into our Constitution --certainly an idea that should be abhorrent to everyone. Yet, unforgivably, with its clumsy and superficial analysis, the US Supreme Court in the Citizen's decision cynically enshrined both “Money Talks” and “Might Makes Right” into the “law of the land”.

More detailed elaboration on the most pertinent “Sound truck” analogy to further clarify the above theoretical argument:
One of the earliest classes of cases limiting free speech had been labeled the "sound truck" cases. These trucks would cruise through neighborhoods blaring messages about everything from electing certain officials for public office, to the latest laundry detergents. The Supreme Court found that "time, place, and manner" restrictions were permissible with regard to speech. The use of a sound amplifier in the truck was considered an inappropriate "manner" of speech causing so large an impact on the public as to be annoying. These cases clearly show that limits on speech "amplifiers" are permissible.

Like the sound truck, money is a "power amplifier" of speech that can be permissibly regulated to prevent one person or group from having too large an impact on the political system ---in other words, to prevent a direct conflict with "one man, one vote". (By the way, this latter phrase reminds us there are other important constitutional rights other than “free speech”. “One man, one vote” is especially important since its aim is to assure equality, and not distortion, of political power.)
 

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