Is Money Speech?
Friday, July 20, 2012 - 02:47 PM
This week on the show we’re airing two stories about the role of super PACs in politics. And one can scarcely talk about super PACS without mentioning Citizens United. And talking about Citizens United tends to spark outrage: corporations aren't people and money isn't speech.
It's been my suspicion that the narrative around Citizens United simplifies what is really going on. In this week’s New York Times magazine, Matt Bai has a great piece that confirms my hunch. Here’s his take:
“The level of outside money increased 164 percent from 2004 to 2008. Then it rose 135 percent from 2008 to 2012. In other words, while the sheer amount of dollars seems considerably more ominous after Citizens United, the percentage of change from one presidential election to the next has remained pretty consistent since the passage of McCain-Feingold. And this suggests that the rising amount of outside money was probably bound to reach ever more staggering levels with or without Citizens United. The unintended consequence of McCain-Feingold was to begin a gradual migration of political might from inside the party structure to outside it.”
But the big thing that concerns me about the post-Citizens outrage-fest is the cry that money isn’t speech; and that in deciding the opposite in Citizens United, the Supreme Court disastrously misconstrued the meaning of the First Amendment. I think this is a red herring. It implies that speech is a sacred category beyond the reach of governmental restriction of any kind, and that by equating money with speech, the Supreme Court put it above any attempts to curb its influence. It seems nitpicky to say money isn’t speech. It’s technically true, but it ignores the reality that money has long been part and parcel of political dialogue. The Supreme Court acknowledged in the first campaign finance case back in 1976:
“Every means of communicating ideas in today's mass society requires the expenditure of money. The distribution of the humblest handbill or leaflet entails printing, paper, and circulation costs. Speeches and rallies generally necessitate hiring a hall and publicizing the event. The electorate's increasing dependence on television, radio, and other mass media for news and information has made these expensive modes of communication indispensable instruments of effective political speech.”
I asked Geoffrey Stone, Edward H. Levi Distinguished Service Professor of Law at the University of Chicago, about it and he said literally speaking, “of course, money isn’t speech, money is money.” But, he added, “money facilitates speech” which makes it a critical part of political expression protected under the First Amendment, but not totally immune from regulation. He put it very eloquently in an article on the Huffington Post:
“The fact that an object is used to facilitate speech does not mean that it is immune from regulation. The use of a loudspeaker is speech, but the government can regulate the decibel level. Burning a dollar bill for expressive purposes is speech, but the government can prohibit anyone from doing so near an open gas line.”
There's a key difference between the act of expressing your views and the way in which you do it. The former is directly protected by the First Amendment, but the latter is not. And more to the point, even if money were speech, that does not make it immune from restriction. The content of what you say is protected, period, but the Supreme Court has upheld various laws regulating the time, place and manner in which you can say it.
So while there’s political debate, money is going to be an important part of it. The major federal efforts to regulate campaign finance have both wound up before the Supreme Court for rulings on how the various restrictions on spending in elections squared with the First Amendment. Money’s role in political speech was a First Amendment issue before Citizens United. It’s the most recent in an on going evolution of the relationship between money, politics and the Constitution. Eight years before Citizens United, which struck down McCain-Feingold (the Bipartisan Campaign Finance Act), the Court declared, “we are under no illusion that BCRA will be the last congressional statement on the matter. Money, like water, will always find an outlet. What problems will arise, and how Congress will respond, are concerns for another day.”