Money Talks Symposium: Money as a Means to More Speech

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.

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3 Responses

  1. The problem is that, to be at all honest, you have to also recognize that regulating money spent on speech is just a means to the end of regulating speech itself. And regulating speech itself is an end the 1st amendment rules out, regardless of the means utilized.

  2. Logan Roise says:

    I think we need to not only look at whether money is speech or money is a means to speech but also who is spending the money and thus gaining greater access to said speech. For me personally, that is the greatest distinction. I believe that money is a means to speech (in that the more money a candidate has, the more they can spread their message).

    Now the question becomes how should we distribute access to speech. Should labor unions, special interest groups, and corporations be endowed with the same inalienable rights that I have as an individual? Absolutely not. As an individual I should be able to use as much of my own money to purchase as much speech as I can. However, an entity that is only as legal as we allow them to be on paper should not be afforded those same rights.

  3. “However, an entity that is only as legal as we allow them to be on paper should not be afforded those same rights.”

    How about if people are only exercising said rights through that entity because the government which wants to restrict it’s rights passed laws coercing them into doing so?

    People use corporations for purposes they’d never have thought to at the time the 1st amendment was adopted. Isn’t this because of a legal environment Congress itself had no small role in creating? To herd people into corporations, and then use the fact that they ARE in corporations to deny them their rights… That’s a bit dodgy.