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Is money speech?

Today, the US Supreme Court issued a decision that will live in infamy. It upheld the core provisions of the McCain-Feingold campaign finance law. I confess I have not yet digested the full 300 page turd dropped on the Constitution by our masters at the Supreme Court, but I would observe that any decision of this length is bound to be flawed. It does not take many words to apply the simple phrase “Congress shall make no law . . . abridging the freedom of speech” to overturn legislation; it does, however, take many, many words to obfuscate the meaning of that phrase sufficiently to uphold legislation that, in part, prohibits the airing of campaign commercials in the weeks before an election.

I will address one of the fundamental flaws underlying the entire project of regulating campaign finance – the claim that money does not equal speech.

First, though, allow me to state that it is perfectly consistent with freedom of speech to outlaw bribery and other permutations of the quid pro quo that may crop up in connection with campaign finance activities. Outlawing bribery in such circumstances is no more a restriction on freedom of speech than outlawing the fencing of stolen property is a restriction on freedom of contract.

It is a fundamental premise of campaign finance regulation that such laws do not restrict speech, but rather restrict only the raising and spending of money.

This distinction between speaking and expending resources on speaking is utterly fallacious, unless you believe that guarantees of free speech extend only to the fine art of conversation. Any attempt to distribute your thoughts to persons who are not in the room with you when you utter them requires the use of resources, and thus the expenditure of money. Allowing the state to prohibit the use of resources to broadcast or distribute speech means that freedom of speech is no more than freedom to converse.

Speech, for all practical purposes, is the distribution to an audience of your thoughts. In the political realm (and most others as well) this distribution cannot be made to any meaningful audience without applying resources, that is, spending money. You cannot print a newspaper, distribute a flyer, operate a website, or stand on a streetcorner ranting through a bullhorn, without using money to distribute your speech. Even bullhorns cost money, after all. The use of resources, the expenditure of money, to distribute your speech, is an absolutely indivisible part of freedom of speech.

Yet campaign finance regulation is nothing more than state limitations on the use of resources to distribute political speech, which is to say, state limitations on political speech. No one would say that a prohibition on expenditures by a publisher to print and mail a magazine, or on a publisher charging for subscriptions or advertising, are consistent with freedom of speech, yet these limitations are closely analogous to the campaign finance restrictions now blessed by the Supreme Court.

UPDATE: I was grousing about this to one of my partners, and he pointed out that apparently the Supreme Court was just being somewhat over-literal. The Constitution protects “free speech,” and they thought that meant it protected FREE speech. If you see what I mean. Sadly, that seems to be about the level of comprehension on display in the opinion.

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33 comments to Is money speech?

  • Alfred E. Neuman

    Who, if anyone, dissented?

  • Richard A. Heddleson

    Scalia, Kennedy, Stevens and Thomas.

    Rhenquist consurred but with a small dissent and is being taken to St. Elizabeth’s for an examination.

  • Abby

    I must say I have heard quite enough from Justice O’Connor this term. Her name on an opinion is a clear signal that the rest will be a feat of moral cowardice.

    The Court has taken a few simple issues and obfuscated them beyond recognition. The length and density of the opinion seems to be calculated to advance the flim-flamery.

    To my knowledge the Court has never before permitted such a bold attack on political speech. Freedom of political speech is perhaps our most sacred value.

    Yet I am more disappointed that both the Court and Congress seem to believe that morality and integrity can be legislatively imposed on our political class. Their corruption is beyond the reach of mortals to cure.

  • Richard A. Heddleson

    Closer reading of Rhenquist & Stevens’ opinions indicates that I got them reversed and it is I who am being confined at St. Eliabeth’s The whole thing is astounding.

  • Abby

    Richard and Alfred: I’ve never known the Sureme Court to issue a 300 page opinion with a clear dissent and clear majority. By my calculation five justices (a majority) dissented at some point. See if you can figure it out:

    STEVENS and O’CONNOR delivered the opinion of the Court with respect to BCRA Titles I and II, in which SOUTER, GINSBURG, and
    BREYER, joined.

    REHNQUIST delivered the opinion of the
    Court with respect to BCRA Titles III and IV, in which O’CONNOR, SCALIA, KENNEDY, and SOUTER joined, in which STEVENS,
    GINSBURG, and BREYER joined except with respect to BCRA §305, and in which THOMAS, J., joined with respect to BCRA §§304, 305, 307,
    316, 319, and 403(b).

    BREYER, J., delivered the opinion of the Court
    with respect to BCRA Title V, in which STEVENS, O’CONNOR, SOUTER,
    and GINSBURG, joined.

    SCALIA, J., filed an opinion concurring with
    respect to BCRA Titles III and IV, dissenting with respect to BCRA Titles I and V, and concurring in the judgment in part and dissenting in
    part with respect to BCRA Title II.

    THOMAS, J., filed an opinion concurring with respect to BCRA Titles III and IV, except for BCRA §§311 and 318, concurring in the result with respect to BCRA §318, concurring in
    the judgment in part and dissenting in part with respect to BCRA Title II, and dissenting with respect to BCRA Titles I, V, and §311, in which
    opinion SCALIA joined as to Parts I, II–A, and II–B.

    KENNEDY, filed an opinion concurring in the judgment in part and dissenting in
    part with respect to BCRA Titles I and II, in which REHNQUIST joined, in which SCALIA, J., joined except to the extent the opinion up-
    holds new FECA §323(e) and BCRA §202, and in which THOMAS, joined with respect to BCRA §213.

    REHNQUIST, C. J., filed an opinion
    dissenting with respect to BCRA Titles I and V, in which SCALIA and KENNEDY joined.

    STEVENS, J., filed an opinion dissenting with re-
    spect to BCRA §305, in which GINSBURG and BREYER, JJ., joined.

  • DJS

    Abby- Huh?!?

    My head is spinning. I need a cold compress……

  • Guy Herbert

    As ever, Britain is well ahead. See this. It’s not just the candidates: Nobody has free speech at an election. And anyone who wants to speak at all had better register with the authorities.

    The US court make some pretty dreadful mistakes from time to time. But our bureaucrats are supreme, not our courts, regardless of labels.

  • The majority justices were under no illusions that McCain-Feingold would clean up campaigns, or stop the flow of big money. In fact, they compared that flow to water, which will always find a way. But I haven’t yet found that any of them bothered to ask or answer why. What makes the flow occur?

    Obviously, if corrupt money is flowing, there is something to be bought. Has it occurred to any of these august guardians of the Constitution that perhaps strictly limiting government to the powers and purposes mentioned in the Constitution might do more than any campaign finance reform legislation to stem the flow of big money? Simply, if the government doesn’t have a huge pile of revenue to distribute, or an almost unlimited power to regulate even the tiniest details of personal behavior, it can’t sell either thing. Conversely, if the government does control a huge pile of cash and the power to make us all dance to their tune, then, as the justices observe, nothing is going to stop people from trying to purchase those things.

    McCain-Feingold is a figleaf, which will be ineffective to achieve its stated purpose (and the purpose stated by the justices), but will have a chilling effect on campaigns — especially the campaigns of small-fry, non-incumbents. In 300+ pages of reasoning, you’d think the justices could put their collective finger on the root of the problem and do something positive about it. Sadly, no. But if you want a fig leaf, hey, fig leaves r us!

  • We don’t need campaing finance reform. We need CONSTITUENT finance reform! If the professional lobby industry is out of control, it’s because the lobby groups are well aware that the US government is willing to throw money around to half of anybody who asks for it.

  • YogSothoth

    I had an idea some time ago that I thought might help the campaign finance scenario – make all donations anonymous.

    – Anyone would still be able to donate any amount of money they wished to the candidate or party of his/her choice

    – Instead of contributions being linked with the causes of the donors the donors would instead choose to support candidates whose policies and principles *already* reflect the donors’ perspectives

    – No risk of the appearance of impropriety, all groups voices would still be heard by the representatives but those voices would be judged based upon the merits of the points expressed rather than being amplified by the sizes of the donations.

    What do y’all think? Interesting idea at least, isn’t it?

  • Verity

    Well, for once Britain is ahead of the US. We had our freedom of speech taken away from us when SSBlair assumed power six years ago. It’s now illegal to express just about any thought except in worship of the god-king, His Holiness the Liar Lama.

    Yogsothoth – This is a wonderful idea, except for one flaw. Let us say an Indian national with no connection to Britain, except one of the houses he owns worldwide happens to be in London, and who owns a large steel company that is registered in the Netherlands Antilles and employs 20,000 people worldwide, around 10 of them in Britain, needs a favour from the prime minister. Let’s say, for the sake of argument, that he’s interested in purchasing the Lithuanian national steel company but his bid isn’t going that great. A phone call from the British prime minister to the Lithuanian prime minister might do the trick. Knowing that the Indian national steel tycoon might then be in a position to become a serious contender against the British steel industry, does the prime minister make the call for this foreign national or not? What if the foreign national donates £150,000 to the Labour Party?

    No problemo! Now, needing a favour of that magnitude, were there a law saying all donations have to be anonymous, do you think the steel tycoon would politely fail to mention it in private?

    Second, someone is going to see the cheques come in. Do you really trust them? Or would they pass on information about big donors?

    I wish it would work, but politicians being what they are, I don’t see it.

  • llamas

    This decision is so staggeringly outrageous – words fail me.

    Especially egregious is the apparent implicit assumption, in both McCain/Feingold and the SCOTUS decision – in so far as I have seen it – that large sums of money spent on purely political speech are somehow corrupt in-and-of themselves, and become more corrupting as the numbers increase, and that political speech itself somehow becomes corrupt because money was spent to produce and distribute it.

    Who or what was ever corrupted by a political ad on TV?

    Once again, SCOTUS has set itself up as a benevolent nanny, proscribing Constitutionally-protected behaviour for short-term and elitist reasons – they think politics would be a better place if there just wasn’t this much money involved in it. McCain/Feingold is nothing more than bright red lipstick on a large and unruly pig – as the court itself observed, political speech (and the money spent on it) is like water, and will find a way.

    I say this in the full knowledge that this decision will have a more chilling impact (nationally) on Democrats than it will on Republicans, since Democrats generally rely more heavily on large corporate, union and PAC donations than Republicans do, and less on smaller, individual donations which are not really affected by this decision. I have no love for Democrats as a species, but I have less love for a SCOTUS decision that limits anyone’s ability to buy and disseminate as much political speech as their wallet will stand.

    Outrageous. And I predict that, in 4 years or less, the flood tide of political money will ‘find a way’, and McCain/Feingold will be nothing more than a historical curiosity – yet the restrictions on free political speech which SCOTUS has applied will still be there.



  • YogSothoth

    Hey Verity,

    Those are good objections – let me try to address them. You appear to have two main points:

    “do you think the steel tycoon would politely fail to mention it in private?”

    “Second, someone is going to see the cheques come in. Do you really trust them? Or would they pass on information about big donors?”

    Ultimately, the answer to both of these is the same answer one would give to corresponding objections regarding bribes. You can surely bribe an official but if you get caught both of you go to prison.

    Having said this, I do have some ideas how this system could be made more difficult to compromise. One idea would be to have an intermediary between the donor and the recipient. This “clearing house” could obscure things by randomly slicing up (or combining) donations to the same recipient and then shuttling them onward with the time between each successive donation influx also varying randomly.

    Lastly, what’s to prevent a person who has in fact given nothing to a given politician from going to that politician and saying: “You know that last big donation you got? That was me and I want you to do xyz”. Especially in light of the “clearing house” idea above, the politician would have good reason to be treat this person’s veracity as suspect.

  • R C Dean

    I say this in the full knowledge that this decision will have a more chilling impact (nationally) on Democrats than it will on Republicans, since Democrats generally rely more heavily on large corporate, union and PAC donations than Republicans do.

    Not to worry, llamas – the Dems have already found their loophole to keep the “soft money” flowing. It is the so-called “527” organizations. The union and fat-cat millions are on tap and ready to rock.

  • Verity

    Yogsothoth – I’m sorry, I like your idea very much, but as long as there are humans – and political humans at that – I cannot see it working.

    Any human, whether “a clearing house” or not, who knows where the money’s come from is in possession, under your rules, of immensely powerful information. Someone sees those amounts and those names. It would be awfully tempting to sell it to the party’s movers and shakers. “Give me $75,000 cash and I’ll give you a list of the 6,000 names who donated more than $100,000.”

    Or alternatively, as a large donor: “Get the word to the presidential candidate that I sent in a million and I’ll give you $50,000 cash” would be equally productive, I’m sure.

    This could be done over the phone, or over drinks in a noisy club. Nothing official. No papers. No records.

    No politician in his right mind would believe someone who sidled up at a party and said: “Just to let you know, Fred, I slipped in a donation of $100,000 last week” so that’s not a consideration.

    As things stand, I think an open system with the information available to everyone provides us better protection. Someone else may have some ideas, though.

    Against a corrupt politician like Tony Blair, who blatantly takes the money (for the party) in return for favours that damage the economy of his own country, there doesn’t seem to be any solution.

  • YogSothoth

    Hey Verity,

    Well, firstly you do a good job of illustrating the difference between normal bribery and my idea. Bribery involves the flow of money and information whereas with my model impropreity can occur as a result of the flow of information only which (as you point out) would make it more difficult to prevent.

    Having said this, preventing insider trading also involves stopping the flow of very valuable information. As in your example, this information can be acquired over the phone, or over drinks in a noisy club but we rely on the threat of prison to counterbalance the ease of clandestine communication and for the most part it works reasonably well.

    At any rate, it would certainly be interesting to try this idea out on a small scale and see what actually happens.
    You might be right on this one, but like drug legalization or school vouchers a limited experiment can sometimes be the most effective way of demonstrating (or refuting) the alleged merits of a given proposal.

  • Verity

    Yogsothoth – One more thing, under your rules, someone with $50,000 to spend could have a quiet talk with someone in the “clearing house” and say, “Here’s $50,000 cash for your good self. Tell the president I contributed a million dollars.”

  • Rob Read

    I think it should only be legal for citizens (i.e. those who can vote) to give to organisations affiliated with politicians. Every other donation from institutions such as businesses and unions is merely corruption and should be banned.

    This would also have the effect of stopping those with two hats i.e. politicians with jobs in Rothchilds or flats on a very cheap rent from a union from existing as employing a politician would cause severe B2B problems!

  • Mike

    “Yogsothoth – One more thing, under your rules, someone with $50,000 to spend could have a quiet talk with someone in the “clearing house” and say, “Here’s $50,000 cash for your good self. Tell the president I contributed a million dollars”

    You say that like its a bad thing.

  • Verity

    No, no, Mike! I was jus’ sayin’s ‘s all!

  • R. C. Dean

    I think it should only be legal for citizens (i.e. those who can vote) to give to organisations affiliated with politicians. Every other donation from institutions such as businesses and unions is merely corruption and should be banned.

    That would be the topic of my next post – why banning political contributions (that is, political speech) from corporations or other groups (including unions) is also a violation of freedom of speech and freedom of association.

    Simply put, why shouldn’t groups of like-minded individuals be able to pool their funds for purposes of being heard in the political arena?

    Once you grant us freedom of association, it becomes very difficult to pick and choose between when we are permitted to associate for political purposes (political parties, campaign organizations) and when we are not (corporations, unions). One could hardly argue that political parties have not been vehicles for corruption, after all, so if facilitating corruption is your touchstone, well, the parties should probably be the first to go.

  • Michael

    I saw a quote from Scalia today saying:

    “This is a sad day for freedom of speech… Who could have imagined that the same Court which, within the past four years, has sternly disapproved of restrictions upon such inconsequential forms of expression as virtual child pornography…tobacco advertising…dissemination of illegally intercepted communications…and sexually explicit cable programming…would smile with favor upon a law that cut to the heart of what the First Amendment is meant to protect: the right to criticize the government.” –Justice Scalia, in dissent

    I must say I agree, although this may be one of the few times I’ve agreed with Justice Scalia in a decision.

    you are suggesting putting a bureaucracy in charge of political donations? As the “guardians of public propriety”? isn’t there some latin saying traslated “who guards the guardians”?

    How many donations do you think a candidate who wants to take apart that bureaucracy is going to get?

    And even if it worked perfectly it’s an aweful idea, people should be able to speak their own mind without clearing it with any agency other than their conscience, and it should be possible to hold people accountable for their opinions, no where is that more true than in politics and political contribution.

    Besides, money and power cannot be separated, it is logically impossible power is (at root) the ability to get things done, money is (at root) a promise to feed people. If you don’t feed the workers, you can’t do anything, if you don’t have money, nothing gets done.

    The evils of money in politics are really just the evils of power, and they can only be reduced by reducing power of politicians. But the only politician less electable than one who says he’ll raise taxes is one who says he’ll spend less money.

  • Rob Read

    > why shouldn’t groups of like-minded individuals be able to pool their funds for purposes of being heard in the political arena

    If you cannot vote then the only reason I can think of for giving money to a political party is corruption. I’m sure organisations could spring up to help people pool their money but the money would be held in trust, and as such is not owned or generated by other activities by the organisation.

    The Air supply to big government is donations from overly big companies (from a free market POV). It’s mutual corruption at OUR expense.

  • Scott Pedersen

    In my most pessimistic frame of mind, I think this decision is a step towards the total conquest of American politics by the media. You’ll note that while political ads are forbidden, the media can do non-stop puff pieces and friendly interviews on why Hillary Clinton is the greatest thing since sliced bread all the way up to the election. Dean on Larry King’s show? That wasn’t a political ad, that was news, an interview even. The law against political ads doesn’t prevent campaigning on TV, it just allows the media to have more control over who does it, and how they’re portrayed.

    In my most optimistic frame of mind, I hope this is only the latest step in a Congress vs. SCOTUS game of chicken. Congress passed the law hoping to get good press while depending on SCOTUS to shoot it down. SCOTUS refused to shoot it down in order to show that they couldn’t be used for political showmanship by Congress, while hoping that Congress will be forced to blink and repeal the law. Both Congress and SCOTUS still have the opportunity to kill this thing, despite the current ruling. Hopefully one of them will, because no matter how pessimistic or optimistic I am, the bill is still an abomination.

  • Verity

    SCOTUS is forcing a deeply perverted 300 page judgement on the formerly free United States. The Tony Blair gang of thugs is forcing a 300 page European (the people we have kept from conquering Britain for 1,000 years) “constitution” on a country that has had a constitution of our own that has served us extremely well.

    The tranzis have inched (not millimetred) into charge.

    Doesn’t feel good, does it? What can we do? We’ll have to move fast because we’re being smothered even while we speak.

  • M. Simon

    We will be going back to the good old days where political parties and factions owned their own newspapers.

    Unlike today where hardly any thing published can be trusted the in the future nothing the media puts out will be worthy of trust.

    The answer of course is that Dean has seen the future and the future is the Internet. If the UN doesn’t get as hold of it.

  • M. Simon

    “Dean sucks dick” would be allowed speech during an election campaign under the current rules as long as it was made into a story of some kind.

    We could have imagined pictures of him drawn by artists engaged in pedophilia.

    In fact a lot of the pornography from the 1776 era was political. George the III doing orgies. The Lords corrupting little girls etc. I know about this because I have studied it in depth.

    This is just a move back to the good old days.

  • R C Dean

    M, you are onto something. Under current Supreme Court law, pornography is given a higher degree of protection from government interference than speech about politics.

    Pornography is the new loophole! I can publish anything I want right up until the election, and if anyone says it is electioneering, I will just say that the Supreme Court, whatever regulation it has allowed of merely political speech, is adamant in its defense of my right to publish photoshopped images of Howard Dean and a donkey demonstrating just what strange bedfellows politics makes.

  • toolkien

    The majority justices were under no illusions that McCain-Feingold would clean up campaigns, or stop the flow of big money. In fact, they compared that flow to water, which will always find a way.

    Shouldn’t this be the most alarming element? When a cause is reduced to empty gestures and rhetoric you know the powers that be are simply trying to appease the (presumably) restless masses. When the ‘authority’ resorts to such tactics to maintain illusions I think one can deduce that ‘authority’ is nearly bankrupt of any real ideas and notions that was the foundation of their ‘authority’ in the first place. The galvanizing forces that brought together the association (i.e. Federal Government) are so weak that empty gestures, at best remotely based on original intent, are made in a futile attempt at maintaining the inertia of the association. The spirit that was the foundation of the association washes away and all that is left is the calcified organization that is maintained with illusory tactics. What meaning does this ruling have if the SCOTUS justices themselves know it is empty. What does the ruling accomplish other than itself being a (rather empty) political statement? Is this what the rulings of the most important judicial body in the US is reduced to?

    As has been stated previously the best way to reassure people that they are not caught in a machine run by big money interests is to end the biggest player in the process, the Feds themselves. This ruling, once the alternative methods of financing are found, will be found to be useless only reinforcing the feeling of futility in the masses. But perhaps one needs to attack the masses as well by clueing them in that it is their never ending thirst for transfer that stimulates the Feds in the first place and it is incumbent on them to change their expectations of what the Federal role is. The process really begins when the mass sells their votes to the highest bidder. This ruling merely addresses the financing of the process.

  • R. C. Dean

    toolkien, I agree. On one page, the Supreme Court sacrificed the very inmost core of our free speech under a balancing test under which the infringement was found acceptable due to the purported benefits of the law. On another page, they admit that these purported benefits do not exist at all! So our free speech rights were traded for . . . nothing.

    The more you read the opinion, the more shameful it gets.

    As an aside, I don’t know how that statement that “Congress shall make no law” opens the door to balancing free speech rights against purported benefits of the law.

  • Wild Pegasus

    I have the sinking feeling that Constitutional Law next semester just got substantially more complicated.

    – Josh

  • I don’t know what’s worse, Clintonian debate over the meaning of ‘is’, or the fact that lawyers and judges don’t have the same meaning for the word ‘no’ as the rest of us.

    “Congress shall make NO LAW __________” has quite lost it’s punch over the last 200+ years, hasn’t it?

    Does anyone in DC understand the meaning of the word “no”?

  • Doug Collins

    I don’t know if anyone is still reading this thread-I couldn’t bring myself to say anything about it until now. I kept trying to start and kept getting too angry to continue. Most of what I would have said has been said above.

    Two questions still occur to me though:

    -As I recall, PACs were born as a way around a constitutional problem with the last campaign finance law (circa 1980 or so I think). Without them, Congress didn’t believe it would pass muster because of freedom of speech problems. If we no longer have PAC’s, is that law still valid? Abby- you seem to be very knowledgeable in this area – If you are still reading these comments, what is your opinion?

    – While I hope there is some way of fighting back against this and eventually getting it reversed, in the meantime I don’t want to be muzzled. Obviously this is going to give much greater political power to the media. It is also going to be a full employment law for incumbents who now won’t have to have those irritating ‘special interest groups’ providing their constituents with copies of said incumbent’s voting record. If there isn’t a way around it, those with the most reason to support this monstrosity, the media and incumbents, will just become more and more deeply entrenched long before anything can be done to reverse it.

    Which brings me to my second question:
    If I set up a website on which I detail Senator Jones’ efforts to “service” the American people by means of his voting behavior, do I run afoul of the law? What if I spend a little money publicizing my website? I ask because I don’t see the efforts of groups like the NRA starting newspapers coming to much. Plenty of people have tried starting papers or buying broadcasters over the last few years and have been stymied by the fact that they are very competitive, mature or even aging businesses.

    I had thought before this that blogs were likely to be very influential, but only through the agency of a small number of thoughtful people who read and write them. I am now wondering if we may be on the verge of something at least as big as the newsletter boom of the 1970’s.