Freeman

ARTICLE

Money Is Not Speech

NOVEMBER 30, 2011 by MICHAEL CUMMINS

“The Supreme Court said that money equals speech!”

Proponents of campaign finance regulation have thrown this trope around freely since 2010’s landmark Supreme Court ruling in Citizens United v. Federal Elections Commission. Fortunately, the Court never actually made such an absurd equation. It would be hard to take the Court seriously if it had.

But the phrase is not just a throwaway idiom. For those who push the idea to the public that the Court has ruled as such—opinion leaders who should (and maybe do) know better—the phrase serves to caricature the Court’s reasoning on campaign finance issues vis-à-vis the First Amendment. And the last thing America needs is to misunderstand the Court when it is actually doing its job: protecting constitutional freedoms from a meddlesome Congress.

The widespread mischaracterization likely stems from an earlier widespread mischaracterization, that of the ruling in Buckley v. Valeo (1976). Buckley overturned restrictions on independent political spending by citizens and associations, and on candidates’ personal spending. A shocking number of scholarly texts and newspaper citations assert that in Buckley the Court ruled that “money is a form of speech.” (Even Wikipedia’s open-source entry for Buckley claimed this at the time of writing.)

In Citizens United the Court went beyond Buckley, ruling that the federal government may not limit corporate or union spending on independent political expression. The ruling is consonant with the text of the First Amendment’s Free Speech Clause, “Congress shall make no law . . . abridging the freedom of speech.” Note that the clause concerns itself solely with its subject—Congress. The nature of the speaker—individual, group, or corporation—was apparently of no matter to the framers.

But putting aside the merits of the Court’s ruling, what relationship does it cast between money and speech?

Though reams of learned text have been devoted to the topic, most economists agree on the very basics of what money is. It is credit for service rendered. Even when we purchase a good, all we pay for is the service of the raw materials having been located, gathered, altered, combined, and then brought to a location convenient to us. If I have a dollar, then I have made a sacrifice (assuming it was not a gift or loot . . . and I’m not a banker!). I expect to be able to use that dollar to induce another person to make a sacrifice on my behalf.

Services can exist independently of money, as in a barter system or when we perform a service directly for ourselves. But every service we receive, however it may come to us, requires a sacrifice from someone for its performance.

Consider the interplay of money, service, and sacrifice in the hypothetical case of a young idealist who wishes to exercise his right to free speech.

Speech Isn’t Free

He considers walking to the town square to regale passersby with his opinions. But he instead decides to take funds from his paycheck to buy a bus ticket. The result of either plan would be the same. His fellow citizens are treated to his well-reasoned proclamations. So do the two dollars he pays for his bus ticket have any nominal connection to the speech he engages in? Would anyone say that the two-dollar fare “equals” his speech?

The idealist’s original plan—to walk to town—would by no means have been cost-free. Depending on what he does for a living, it might even have cost more than the bus fare. He would have had to exert himself—at his job or in his garden—to procure the extra food needed to fuel his walk, sacrificing other services he might have enjoyed with those energy resources. Had he eaten just his usual amount before leaving his house, then the energy he consumed walking could have been used instead to, say, mow his lawn. Or perhaps he would have mowed his neighbor’s lawn . . . for ten dollars.

The point is that there is absolutely no cost-free way to express political beliefs to our fellow citizens. And the cost involved is the means to a completely distinct end.

Certainly, the money that corporations use to effect political expression is of a much larger scale than that involved in the foregoing example. But though some will balk at the notion, it really is just a difference in degree, not in kind. And even if one believes the scale of spending matters when it comes to political expression, “money” cannot be equated with “speech” in any analysis.

Poll Taxes

But money is the operational equivalent of resources, and to regulate the expenditure of resources for political expression is to regulate the expression itself. It brings to mind Jim Crow-era poll taxes. Racist state legislators claimed that they were not violating the Fifteenth Amendment with such fees, because poll taxes were not an actual prohibition on voting. For decades the Supreme Court bought this argument, failing to recognize that interference with the necessary means of voting is tantamount to disfranchisement.

So, much as they might try to fool themselves and others, proponents of campaign finance limitations are opponents of free speech. In many ways, their concerns are understandable—corporate power in today’s America is daunting. But instead of tinkering with fundamental rights, perhaps they should strive instead to hold the federal government to its constitutionally limited functions. With few governmental goodies to be had, and few onerous regulations to fear, corporate America would undoubtedly regard massive political expenditures as a massive waste of money.

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December 2011

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