Money Talks Symposium: One more thought
I forgot to add one point to my last post – probably because I hate to take issue with Professor Chemerinsky in his valiant defense of my view. Nonetheless, I would like to point out a divergence between my view and the one he articulates in his post. He says that recognizing that spending money merely facilitates speech, “it should be appropriate to restrict spending to ensure that more speech really happens.” This is a much stronger claim than the view I propose and one I am not sure I agree with. Congress could decide that the means to participate in elections should be distributed on a non-market basis because this is a good that calls for a different distributive principle than ability to pay. Whether this decision would yield more or less speech, I cannot predict. Nor do I think that is the gravamen for whether this decision is constitutional. Rather, I think that the congressional decision affects property, with implications for the exercise of speech, and is permissible so long as Congress provides an alternative distributive mechanism and employs distributive criteria that no not violate other constitutional rights.