Money Talks Back: A Quick Response to Seidman’s Response to Hellman

Delighted to be here! Deborah Hellman’s article is so wonderful and clear-headed that it makes you feel downright healthy, as if someone had gone into the weeds and, in fact, weeded them. It displays none of the learned helplessness that can often drag down post-Buckley writing, and takes on directly Buckley’s problematic conclusion that the use of money in the political campaign context constitutes protected first amendment speech.

She starts by removing the question from its usual arena—”what is the relationship between money and political speech?”—into a new one—”what is the relationship between money and all constitutionally protected rights?” Money, she points out, is useful to the exercise of most of our constitutional rights. How it is distributed also creates incentives and disincentives to the actual exercise of all of them. However, the incentive relationship between the distribution of funds and the exercise of speech does not mean that all laws limiting certain kinds of spending require the strictest constitutional scrutiny. It would be useful to be able to spend money to exercise the right to sexual intimacy, but Congress is free to ban prostitution. It might be useful for states to pay people to exercise the constitutionally protected right to vote, but Congress is free to ban such payments.

Instead, she suggests, Congress must protect rights, but it can do so in one of two ways—either by making them (the rights) freely available to all, or by allowing the market to make them available, and not banning people from spending money to get them.
This is where I think that Professor Seidman gets something wrong in his interpretation of Prof. Hellman’s article. He suggests that in Hellman’s world, the government could ban selling books and give away only a few, on its own terms. (And the same with abortions).

I take Hellman to be saying something different. I take her to be saying that if it isn’t distributed via the market, it has to be universally distributed by the government. (Like, e.g., the right to a lawyer in a criminal trial). I take her to be saying that if there is a right, there must be a non-monetary way for everyone to exercise that right, or they have to allow people to spend money to access that right.

In other words, the government could never ban writing or creating books, but it could ban buying books if it made every book free. The government could never ban abortions, but it could ban paying for abortions if it made access to abortions universally acceptable.

And so I come to the opposite conclusion of Professor Seidman: I take it to mean that all civil liberties must be protected, but the government has leeway in terms of how to protect them, either by providing them freely, or providing a market for them. The potential doctrinal impact of her article would be to give legislatures more leeway in how—not whether–to enable universal access to constitutionally protected rights.

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5 Responses

  1. Erwin Chemerinsky says:

    I am delighted to participate in this discussion about Professor Hellman’s excellent article. Having read earlier messages from today, I find that I am much more in agreement with Professor Teachout than with Professor Seidman.

    Professor Hellman rightly questions whether spending money in election campaigns should be regarded as a form of speech in itself. As she rightly points out, this is the premise of Citizens United v. Federal Election Commission and has been assumed ever since Buckley v. Valeo. It is often forgotten that in Buckley, the D.C. Circuit came to an opposite conclusion and held that spending money in elections is not itself speech, but rather conduct that communicates.

    Money is speech only in that spending money is a form of communicating a message of support. But as Buckley recognized, this is achieved by any size contribution or expenditure. Allowing unlimited contributions or expenditures does not necessarily (though it could) express greater support.

    The real argument for protecting spending money in election campaigns is that money facilitates speech. More spending likely translates into more speech. But that does not make spending money speech, just something that leads to more expression. This is the central insight of Professor Hellman’s article: there is a relationship between money and many constitutional rights. Her article very carefully details the different types of relationships that might exist.

    Most importantly, once it is recognized that spending money in elections is not itself speech, but rather only a means to more speech, then it should be appropriate to restrict spending to ensure that more speech really happens. In other words, once it is realized that spending money is a means to the end of more speech, then spending can be restricted if it is done for the sake of having more speech occur.

    Erwin Chemerinsky

  2. TJ says:

    The universal distribution criterion can’t be what Professor Hellman is saying. For example, she raises the fact that the right to sexual privacy is protected but prostitution can be criminalized. Suffice it to say that the government does not provide “universal distribution” in this field.

    Moreover, it seems that by “universal distribution” you really mean “unlimited distribution,” since the government cannot provide only a few books, and thus must supply unlimited books. But no government can supply an unlimited quantity of any valuable resource, whether books or campaign advertising. There is a finite limit to the number of printing presses and television stations and newspapers and other forums for speech, and so these scarce resources must be allocated somehow. They are either allocated by money (in a market system), or they are allocated by some other mechanism such as queuing or lottery or direct government selection of which favored books get printed and ads get run.

    If the only way for the government to ban money for speech is for it to directly provide for unlimited speech, then that is no different from saying that the government cannot ban money for speech.

  3. Zephyr Teachout says:

    TJ,

    Think about the cases where the government provides universal distribution, like the right to a criminal defense lawyer at a trial. It does not mean that everyone gets unlimited numbers of lawyers, but that the government provides everyone who cannot afford one, a lawyer. Hellman suggests that with that guarantee, it *might* be possible to say, “you cannot pay for a lawyer in criminal defense context.” In other words, the exercise of the right is not in fact the unlimited exercise of the right.

    In the books context, that means it probably isn’t workable, because the government cannot provide unlimited books, and there is no such thing as “constitutionally sufficient” access to books.

    However in the speech context it is very tricky, because its not clear whether its more like books, or like lawyers. In either case, however, the question stops being (importantly), “is money speech” and starts being “what are the basic material conditions necessary that anyone can exercise protected constitutional rights meaningfully”, which is a very critically different starting point.

  4. TJ says:

    Zephyr,

    But the government doesn’t provide universal distribution of criminal defense lawyers. It provides subsidies for the poorest and leaves everyone else to procure defense lawyers through ordinary market means. Thus rich people will get Johnny Cochran (by paying for him), while poorer people get public defenders. It is fundamentally a market allocation where the government simply subsidizes a portion, as it does in many other contexts such as health care. An analogy to books would be for the government to subsidize the printing of some books, as it does through the government printing office.

    It is qualitatively different in a “universal distribution” system that you propose. If the government were the *only* source for lawyers, then you have the problem that some lawyers are much more desirable than others (e.g. Johnny Cochran or Clarence Darrow versus some incompetent boob). If you cannot allocate by money, the government has to allocate who gets Johnny Cochran by some other means. Again, your basic options are lottery, queuing, or direct government selection. It is no different that every candidate will want the advertising slot in prime time on the highest rated network and not the slot at 4am in the morning on a cable channel.

  5. zephyr teachout says:

    TJ,

    I think you’re right. Universal distribution is the wrong word.

    ZT