Money Never Stops Talking: Doctrinal Implications?

One of the (many!) interesting questions raised in this fascinating discussion is what, if any, doctrinal impact Hellman’s argument would have. I want to suggest two areas where it would make a difference.

(1) The first is that it would require a return to an explicit, grounded, technologically current examination of the resource link between money and speech rights (or money and politically influential speech), instead of skipping that step.

Buckley itself suggests that its money/speech conclusion is technologically and temporally bounded:

“A restriction on the amount of money a person or group can spend on political communication during a campaign necessarily reduces the quantity of expression by restricting the number of issues discussed, the depth of their exploration, and the size of the audience reached. This is because virtually 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.”

If you take this passage seriously, it sounds a lot like Hellman; it includes a exploration of on the ground resource facts, and explicitly time-bounded observations about the contemporary material requirements of political speech/political influence (which it conflates). The Court refers to the resources required “in today’s mass society”, and references to television, radio, and “hiring a hall.”

It suggests that a significant part of the question is “the quantity of expression,” and the “dept of their exploration.”

Obviously the internet changes the capacity to publicly speak in great quantities and in great depth. The “humblest handbill” is now a facebook update, and does not require printing, paper, and circulation costs—it requires a visit to the public library.

Even the “size of audience reached”, unfortunately lined up as a parallel to depth and quantity, is complicated in an internet era–it is now possible, if not likely, to reach a massive audience without money.

This is not to say that political influence is cheap: today’s mass media is a confusing blend of concentrated MSM, the new data oligarchs like facebook and google news, and personalized media. But it is to say that the technological and media environment are radically different, and it is at least possible (though not likely) for someone with no money to have enormous political influence through online communications.

Under the money=speech rubric, this is not particularly relevant. Under money facilitates speech, these on-the-ground facts are critical: they are in fact the heart of the question.

(2) The second, related, is that it encourages a specific examination of how legislatures in fact distribute political speech and influence rights. Inasmuch as Congress chooses to enable some non-market based access to political speech, it would change the analysis. (Professor Solum and I have been discussing this in another comment thread.) So, for example, if the government created a matching funds system (like the system proposed in FENA in Congress now, where low dollar funds are matched), the amount an individual would have the constitutional right to spend might be diminished.

In both of these ways I suspect that Hellman’s argument would lead to a much more practical, less theoretical, approach towards political corruption and political speech, both of which tend to be overly abstracted and under-described in the courts.

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