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.