Money Talks Symposium: Marketplace of Ideas, Metaphor or Reality?

First let me say how very honored I am that Concurring Opinions is hosting this symposium on my piece, Money Talks But It Isn’t Speech.  I especially appreciate the comments both those challenging my view and those defending it.

I see the questions posed by Lawrence Solum and Mike Seidman as driving at a similar point.  Solum, in particular, begins by agreeing that money provides the means to exercise many rights.  He emphasizes too that money is not the only means, there are other resources one brings to bear in the exercise of rights.  Where a law restricts the use of these means, he argues that it restricts rights or at least makes a prima facie case to be restricting rights.  The examples he offers would allow legislatures to do an end run around rights by simply restricting the means to exercise those rights.  Clearly this isn’t a tenable result.  In the paper, I emphasize both that democratic decision-makers must be free to decide whether goods are to be distributed via the market or instead via other methods and that we must insure that this permission doesn’t allow the legislatures to curtail rights as Solum’s examples suggest.  Here’s how we can do both:  democratic decision makers may decide to distribute a good via a non-market means but in order to do so must provide an alternative method of distribution.  Think of votes and organs here.  Votes are distributed on the basis of age and citizenship, organs on some account of medical need.  Solum’s hypotheticals do not present cases where legislatures have provided an alternative distributive mechanism at all.  Unless the state does so, it has violated the underlying right by curtailing the means to exercise the right.

This brings me to Zephyr Teachout’s thoughtful defense of my view.  She suggests that Congress (or a state legislature) removes a good from the market when it makes it “freely available to all.”  While Congress has provided an alternative distributive mechanism where it makes the good “freely available to all,” I find I cannot adopt this interpretation of my view as I think it is too demanding.  Organs are not freely available to all, nor are votes, babies, sex, etc.   Rather, I think Congress or the state legislature must provide an adequate alternative method of distribution.  The two words to stress here are “adequate” and “distribution.”  Solum’s examples fail this test because they are simply not methods of distribution at all.  I include “adequate” to address the challenge of a case like Mike Seidman’s example of a government that eliminates the market in books and distributes the limited supply on a non-market basis.  Most likely the loss of a market in books would dramatically affect the supply.  If it does so in a way that leads to dramatically fewer books, then the alternative distribution method may not be adequate.  I realize, of course, that determining adequacy will not be easy and can only say now that I am leaving this issue for another day.  This example points out the way that money incentivizes the exercise of rights as well as facilitates it.

Seidman’s  other example raises a slightly different point.  He worries about the criteria that the government might use in distributing abortions (if they were distributed via non-market means).  Here, I inclined in part to agree with Teachout.  Abortions themselves are not scarce, so there is no reason an adequate alternative distributive mechanism wouldn’t provide them to all who present themselves. But the deeper point is that for truly scarce goods – medical resources more generally, for example – a non-market method authorizes the government to decide the criteria of distribution.  Here I think I am going to bite the bullet.  Market based distributions distribute goods based on ability to pay.  Often these distributions are dramatically unjust.  An alternative distributive method of a scare resource will inevitably use a distributive method that will leave someone out.  So long as that scheme doesn’t infringe another constitutional right – Equal Protection most notably – then it is permissible.

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