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Is Money Speech?

By David Schultz on June 3, 2014 in Civic Blog
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8775603_lIf — or when — the Roberts Court in the next couple of years strikes down the last remaining Watergate-era campaign finance laws, the question will shift to: Who is to blame? It will be easy for liberals to say it was the conservatives, especially those on the U.S. Supreme Court, the Republicans or even the Koch brothers. But the reality is that the seeds of campaign finance reform’s demise lie in the very case that started it all – Buckley v. Valeo, which tested the constitutionality of political contribution and expenditure limits.

The core of the 1976 Buckley analysis was simple — the Federal Election Campaign Act’s “contribution and expenditure limitations both implicate fundamental First Amendment interests.” At no point in Buckley did the court ever say “money is speech.” The language was more ambiguous, suggesting that money raised First Amendment concerns; that the use of money was neither pure conduct nor pure speech; and that money was linked to free expression, especially when it came to political expenditures. The court eschewed promoting equality as a compelling interest justifying restrictions on money, settling on preventing corruption and its appearance as reasons for limiting contributions, but not so for expenditures.

The Buckley rules were never clear. How is money related to speech? What is corruption or its appearance? Is it really possible to draw lines between political contributions and expenditures? And who is entitled to speak with money? All these are vague legal doctrines, and opponents of campaign finance reform have exploited the ambiguity, arguing that there was no principled way to draw lines that separate speech from conduct.

Dating to the Burger and Rehnquist courts, opponents gradually chipped away at money regulations, with the Roberts Court fully exploiting the failures of the regulatory regime under Buckley to provide satisfactory answers to the exact constitutional status of money in politics. The Roberts Court has steadily chipped away at campaign finance regulations, most recently in McCutcheon v FEC. McCutcheon is remembered as the decision that struck down aggregate contribution limits. The decision’s deeper legal importance is that it narrowed the concept of what corruption means for the purposes of establishing a compelling governmental interest to regulate political contributions.

The Roberts Court’s narrowed concept of corruption will be used to invalidate individual contribution limits. The court no doubt will first reject the appearance standard as vague and not as demonstrating real corruption. The next step will be to argue that existing standards to regulate real corruption are overinclusive — what is real corruption unless one can show real bribery? Conversely, the court will argue that any form of campaign contribution limit serves to chill speech, amounting to a form of censorship. In either scenario, the court will either have de facto ruled all contributions limits unconstitutional because there is no real evidence compelling enough to justify restrictions, or it will effectively and finally rule unequivocally that money is speech and therefore all limits on contributions violate the First Amendment. Barring some change in court personnel, this ruling will come within a couple of years.

So if Buckley dug its own grave, what was the alternative? The fundamental flaw lies in conceding right from the start that money is a legitimate tool to allocate political power and influence in America, or that economic resources should be allowed to convert into political influence.

LIMITS TO MONEY’S INFLUENCE

Money may be a great to allocate sailboats and luxury items, but not political influence and democratic values. There are limits to what money should buy. No one thinks school admissions, grades, or jobs should be sold. Justice in court should not be allocated on the basis of ability to pay. Nor do most of us support the idea that money should be used to allocate organ transplants or basic medical care. Allocation of political power and influence should be distributed according to nonmarket criteria. To a large extent, American political power is being subjected to a marketization of its operations.

The issue here is not the efficacy of money. By that, the primary issue is not whether money makes a difference in terms of who is elected or who has political influence. One could debate forever whether money buys influence or corrupts. This is where the legal debate over campaign finance is wrongly centered. The issue should be whether money should at all be the criterion by which political power or influence is allocated.

Even though American democracy has grown along with capitalism, the two should not be conflated. Many of America’s Founding Fathers feared the impact that economic inequalities could have on politics. James Madison in Federalist No. 10 warned of the problems associated with “various and unequal distribution of property.” Additionally, Justice William Rehnquist dissent in First National Bank of Boston v. Bellotti recognized the illegitimate drive of corporations to convert their economic resources into political power.

The problem with Buckley and the court’s decisions on money in politics is that the justices failed to understand how a democratic system derives its legitimacy from political equality. Allowing the allocative criteria of the economy to substitute for equality in the political arena gives money and wealth a role that they just should not have in American democracy.

david_schultzDavid Schultz is a professor of political science at Hamline University and a professor of law at the University of Minnesota, where he teaches election law. He is author most recently of “Election Law and Democratic Theory.” This piece was originally published in The National Law Journal on June 2, 2014 and republished here by permission of the author.

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