The doctrine that money is a form of speech was not passed in any American legislature. Only seven people, Supreme Court justices, voted to create that  inequitable equivalency. That vote took place in 1976 in the ruling on Buckley v. Valeo. Senator Buckley (C – NY), presidential candidate Eugene McCarthy (D – MN) and others filed a suit against the Secretary of the Senate and ex officio member of the Federal Elections Commission , Francis Valeo. The decision of the Court changed the course of American federal elections and established one of the roots of the Citizens United decision.

The Court upheld a federal law which set limits on campaign contributions, but ruled that spending money to influence elections is a form of constitutionally protected free speech, and struck down portions of the law.

“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.”

How did the Court come to this? In 1974 Congress managed to override the veto of President Ford to pass significant amendments to the Federal Election Campaign Act of 1971. The 1974 amendment to the FECA included contribution limits (2 USC §441a) and established the Federal Election Commission (formerly 2 U.S.C. §437c(a) (1)(A-C)). Other key provisions of the law included:

  • provided for the public financing of presidential elections (IRC Subtitle H)
  • required the disclosure of political contributions (2 USC §434)
  • limited expenditures by candidates and associated committees,
  • except for presidential candidates who accepted public funding (formerly 18 U.S.C. §608(c) (1)(C-F)),
  • limited candidate expenditures from personal funds (formerly 18 U.S.C. §608a),
James Buckley

It is the last of these restrictions that brought the lawsuit from Senator Buckley, McCarthy and others:

Appellees contend that what the Act regulates is conduct, and that its effect on speech and association is incidental, at most. Appellants respond that contributions and expenditures are at the very core of political speech, and that the Act’s limitations thus constitute restraints on First Amendment liberty that are both gross and direct.

We know what the seven judges, who sided with the appellants in this case, believed: restricting money restricts speech, ideas, numbers of people reached and the depth of discussion. Is spending any amount of money a right though? If it is covered under the Constitution, it would have to be included in the 9th Amendment since no other Amendment mentions the right of spending money. That Amendment reads, “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” However, does that mean that Congress and legislatures cannot restrict the spending of money?

There are well-known and understood restrictions on the 1st Amendment. We cannot yell “FIRE” in a crowed theater when there is no fire. We cannot incite armed rebellion. We cannot articulate advocacy or intention to assassinate an American president. We cannot engage in child pornography. These are not merely “time, place and manner” restrictions, as most defenders of the status quo insist. Congress was certainly functioning within its power under Article 1, Section 4 of the Constitution to regulate the manner of elections, and spending money is certainly a “manner” of elections. Why, then, did the Court not allow the restrictions on the spending of money in campaigns? Whether the spending of money is a right under the 9th Amendment or even if it is deemed a form of speech and therefore covered by the 1st Amendment, it is not unconstitutional for Congress to draw lines proscribing certain forms of speech if spending money is a form of speech and not conduct as the appellees argued.

Congress and state legislatures place limits on what may be purchased with money. We cannot buy fireworks in many states. We cannot purchase the services of a prostitute in most states. We do not have the right to acquire through any means schedule I drugs (narcotics). If spending money is a right under the 9th Amendment, it is well under the power of Congress to regulate that right since spending money is a manner of campaigning.

The Court’s decision was highly inconsistent, illogical and unfair. If money is a form of speech and therefore protected by the 1st Amendment as they claimed, then why did not hold for everyone contributing to political campaigns? They upheld restrictions on financial contributions that citizens can make to a campaign while throwing out restrictions on how much the candidates themselves can spend on their campaigns. Why should any right be applicable for some people and not others? This inconsistency was explained in the decision:

By contrast with a limitation upon expenditures for political expression, a limitation upon the amount that any one person or group may contribute to a candidate or political committee entails only a marginal restriction upon the contributor’s ability to engage in free communication.  A contribution serves as a general expression of support for the candidate and his views, but does not communicate the underlying basis for the support. The quantity of communication by the contributor does not increase perceptibly with the size of his contribution, since the expression rests solely on the undifferentiated, symbolic act of contributing. At most, the size of the contribution provides a very rough index of the intensity of the contributor’s support for the candidate. A limitation on the amount of money a person may give to a candidate or campaign organization thus involves little direct restraint on his political communication, for it permits the symbolic expression of support evidenced by a contribution but does not in any way infringe the contributor’s freedom to discuss candidates and issues. While contributions may result in political expression if spent by a candidate or an association to present views to the voters, the transformation of contributions into political debate involves speech by someone other than the contributor.

Why did the Court allow unlimited amounts of money to be spent by candidates for federal office? This, too, is explained in the decision:

The interests served by the Act include restricting the voices of people and interest groups who have money to spend and reducing the over-all scope of federal election campaigns. Although the Act does not focus on the ideas expressed by persons or groups subject to its regulations, it is aimed in part at equalizing the relative ability of all voters to affect electoral outcomes by placing a ceiling on expenditures for political expression by citizens and groups. Unlike O’Brien, where the Selective Service System’s administrative interest in the preservation of draft cards was wholly unrelated to their use as a means of communication, it is beyond dispute that the interest in regulating the alleged “conduct” of giving or spending money “arises in some measure because the communication allegedly integral to the conduct is itself thought to be harmful.” 

“Thought to be harmful?” Thought by whom? The Act’s goal of equalizing the ability of voters to affect electoral outcomes is Congress’ prerogative and Congress alone was granted the power to make elections fair for voters by the framers.

As a brief side note, this decision, the legislative claim that money is a form of speech, is the first in a series of Court decisions where the SCOTUS legislated from the bench on matters they did not have the power to make culminating, but not stopping with the infamous Citizens United decision. Starting with Buckley v Valeo, the Supreme Court has been usurping Congressional power to regulate the manner of elections. By making the false and unjust equivalency between money and speech a doctrine, the Court began regulating the manner of elections.

According to the FEC website:

“Congress made further amendments to the FECA in 1976 following a constitutional challenge in the Supreme Court case Buckley v. Valeo; major amendments were also made in 1979 to streamline the disclosure process and expand the role of political parties.”

Justice Powell

The 1979 round of amendments was a response to another landmark case, First National Bank of Boston v. Bellotti. In the majority opinion, Justice Lewis Powell wrote that a Massachusetts criminal statute prohibiting the expenditure of corporate funds for “influencing or affecting” voters’ opinions infringed on corporations’ “protected speech in a manner unjustified by a compelling state interest.” Since banks didn’t have vocal cords, and bankers with vocal cords were outnumbered, they were given the right to speak with money, diminishing the concept of majority rule. Taken together, Buckley and Boston represent the one-two punch making up the foundation of money as speech, which is one of the four core principles underpinning the Citizens United ruling.

In the abstract, spending money can be considered a form of speech in the same way that throwing a brick through a window can be considered a form of speech. The issue is a question of balance. Nobody believes in protecting the right of the brick thrower to “speak” by committing an act of violence over the right of the window owner to be secure from destructive acts. The problem is that the Supreme Court neither understands nor cares that extreme wealth in politics is a form of violence against our democracy, corrupting the very foundation of one person, one voice, one vote. The Court always understands abstract concepts that empower corporations and wealthy politicians, but rarely understands abstract concepts that empower individuals and protect democracy.

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30 Comments

  1. Tom Huckin

    Beautiful! Together with some MTA colleagues I’m meeting with a newly-elected City Councilwoman here in Salt Lake City tomorrow and will be able to use some of this information.

    Thank you!

    Reply
    • pewestlake pewestlake

      I obviously missed the comments on this page when they came in. I hope this was helpful in your meeting, Tom!

      Reply
  2. Rick

    It is not so much the using money to buy press that hurts as it is for White House officials to not have to follow the MAJORITY of their constituents as was intended in order that the Democratic Republic that our Founders conceived

    Reply
    • Rick

      Democratic Republic (WORKED)

      Reply
    • pewestlake pewestlake

      It’s not just the White House. This impacts every elected office in the country.

      Reply
    • Karl B. Hensel

      They are all corrupt. Both sides. Politics is the worst of the worst. The people are no longer in control. Money is. If not then make it a law that no representative can vote on a matter that would financially benefit directly contributors of $2500.00 or more. Sheldon Addison will get no more votes supporting eliminating online gambling. Unions will not get any votes on restricting a businesses from dictating work schedules etc.
      Oh hell no they will not. It is corruption. Paying for political favors. I personally can not afford a president, Senator, Congressman, damn I can not afford a city dog catcher…

      Reply

  3. Excellent tutorial. Concise, accurate and perfect for dissimination to interested citizenry. Where’s the “share” icon? I want to move essat to my Facebook page from my Nook but the latter doesn’t have URL cut and paste capability.

    Glad I found this site!

    Best regards,

    John E. Reuter, Esq. (Ret.)
    Cumming, GA 30041

    Reply
    • pewestlake pewestlake

      John,

      I don’t know how the sharing feature got turned off on this page but it has been restored.

      Thank you very much for pointing that out and thanks even more for your interest in sharing our work!

      Best,
      Paul Westlake
      Managing Editor

      Reply
  4. J.S.

    Great article, I wonder what the author makes of the idea that “If government controls the money, it controls the speech.” How would the author respond to the premise in this video: http://www.learnliberty.org/videos/is-money-speech/ Thanks!

    Reply

    • JS, I looked at the learnliberty video you posted, and posted this to their page in response:

      Your video asked us to respond to whether money is speech but I saw no link for me to do so. Also I think it’s ironic that you don’t say where the money comes from to support your org.

      But to answer your question, no, money is not speech, and your arguments against limiting money in politics, I don’t find compelling, I think laws can be crafted that protect people’s ability to speak but prevent the legalized bribery we have in DC.

      So let me ask you – do you believe that money plays too large a role in politics? I’ll assume your answer has to be yes unless you’re in total denial of reality. If so, what’s your solution if you don’t like the http://www.MoveToAmend.org Amendment solution? And remember, the Amendment is just the first step. After that’s passed, we can have a discussion about what laws make sense.

      Reply

  5. If nothing else, money, as the element and hinge point of free speech in this matter, affords First Amendment rights and protections to one to the extent of the money that they have. The more money, the more free speech. Nothing could be sillier and illegal. It would mean that if one has no money that they will get no free speech rights?

    Reply
  6. Karl

    We can not continue to practice the pay to play politics. Corporations and individuals with the most will always benefit the most.

    Reply
  7. Rachel

    Hello,

    I’m a college student researching campaign finance regulations, and I’d like to cite this article. I’m not seeing a by line or a publishing date. Would someone be willing to give me that information? I would greatly appreciate it.

    Thanks!

    Reply
    • pewestlake pewestlake

      WordPress doesn’t automatically add dates and bylines to pages the way it does with blog posts. Given the nature of our work, we should probably fix that.

      This article was written by Victor Tiffany, Senior Columnist, and Paul Westlake, Managing Editor, and published on Sep. 8, 2012. You can find more info on the authors under the “about” tab in the top menu.

      Thank you for your interest and be sure to come back and share your work with us when you’re done.

      Pw

      Reply
  8. Don Johnson

    The real fun part of the Court equating money with free speech is to see where this takes us.
    You could contribute money to Al-Qaeda as a political contribution, it is free speech.
    You could bribe a police officer rather than talk your way out of a ticket.
    You could pay a politician to support your business activity. (already activated)
    Your payment for cocaine is just your verbal support for illegal drugs.
    We really do have a future of new possibilities.

    Reply
    • VictorMTA VictorMTA

      Don, you list a few ways that the spending of money is, indeed, proscribed by law. In Buckley, the Court did more than protect money spent on campaign propaganda under the First Amendment. It also redefined corruption from its long history of a broad, undue influence to a narrow quid pro quo.

      For us, the “fun part” is working with others in our communities to build a movement to overturn this absurd equivalence. I’ve made a lot of new friends in the process.

      Reply
  9. Drblues01

    Aside from the legal arguments and the logic of seeing corporations as people, there is the question of what kind of country/world do we want to live in. Is a plutocracy, where the rich pick those who represent them to us consistant with “to promote the general welfare.” Don’t consequences matter. I have a right to throw a rock into the sea, but not into a crowd of people. If your freedom to control the political process drowns out mine, that is throwing a rock into the very notion of democracy.

    Reply
  10. Mike K.

    At issue in Citizens specifically was a law allowing the federal government to {selectively} prosecute people for the grave crime of making a hackey documentary about Hillary Clinton – because they had organized a corporate form, like the NY Times has {are you aware ‘the press’ isn’t a carve out for newspapers, Sir, I wonder…} to raise money, file taxes, etc.

    So then, notwithstanding the problems of corporate money, and indeed billionaire money, in elections, it is absurd to claim that the 1st Amendment, by its plain language, allows the government to fine or jail people for political speech. This is, strictly speaking, an immunity from government interference, not a “privilege,” though “free speech rights” has become the term of art. Regardless, there is nothing in the First Amendment to suggest this prohibition on Congressional power to abridge the spoken or written word only applied to single individuals. Nothing. Not in the language, and not in the legislative history.

    The truth is, the anti-Citizens position wants to *amend* the 1st out of fear that “right wing” corporate messaging might… gasp… get people to change their minds and vote GOP instead of Democrat.

    By the logic of the ‘living document’ left – there is literally nothing, nothing at all, that prohibits the government from fining or jailing journalists or newspaper writers for writing “electioneering” op-eds. Again, ‘the press’ meant and means the printed word, not the news media as such – a Philadelphia newspaper was not granted more speech protection than the guy cranking out pamphlets in his stable.

    Even *were* there a special privilege to newspapers, if the text only means what you want to get to the result you want, why on earth should ‘press’ apply to eeee-vil corporations as such?

    Citizens was rightly decided, and what should frighten you is how narrowly.

    Reply
    • VictorMTA VictorMTA

      The truth, Mike, is that this article has little to do with Citizens United. Buckley v Valeo served as one of the illegitimate underpinnings of the decision.

      The truth is the anti-Citizens United position had to do with corporations, and all other artificial entities, i.e., unions, PAC, etc., should not be involved in electioneering communication. It’s up to right-wing candidates and right-wing parties (as permitted by law) to “get people to change their minds and vote” for the corporate party.

      Citizens United was a fabricated decision. Judge Roberts told the appellees in that case to go back and re-argue their case on broad, First Amendment grounds, so the corporate Court, the Roberts Five, could unleash corporate money in American elections. It literally legalized corruption in American campaigning. (For more on that, read Zephyr Teachout’s Corruption in America: From Ben Franklin’s Snuff Box to Citizens United.)

      Luckily for America, most Americans do not agree with your support for this corrupting and illegitimate (not constitutionally supported) decision.

      Reply
    • pewestlake pewestlake

      Mike,

      The Press does not mean the written word. It is not and never was the printing press that was being described. Freedom of the press is a prohibition against the creation of “seditious libel” laws that would preclude the use of “truth” as a defense for anyone who speaks or prints factual information that is embarrassing to elected officials and other government workers.

      The New York Times does not, and should not, have a free pass under the First Amendment. It is the individual journalists working for the NY Times that are exercising freedom of the press. In those instances in which the employes of the NY Times are being sued, individually or en masse, the nexus of interest that the artificial entity (the NY Times) has with its journalists is sufficient to give the corporation standing to defend its employees in court.

      That is more than enough to protect press freedom without giving newspapers and other media companies carte blanche to use their influence to seed the American public with lies and half-truths under the protection of the First Amendment freedom of the press. Freedom of the press protects truth-tellers. Freedom of speech protects political speech, even when it omits or distorts the truth. They are not the same thing.

      What the Supreme Court has done, going back to Buckley (as Victor mentioned) is deliberately conflate speech and press in an effort to place commercial speech, which had traditionally been subject to regulation (truth in advertising, product labeling, etc), beyond the reach of lawmakers and regulators. The end result will eventually be outright lies in product packaging, commercials and everywhere else, and not just in the political communications of corporations but in the commercial pitches to consumers that have always been deemed unethical (“this sports drink makes your penis bigger!”).

      You ask if we understand that press isn’t a carve-out for newspapers while failing to understand what press really is. I wonder if you have to taken the time to truly understand all the ramifications of the unleashing of commercial speech in unlimited quantities for unlimited purposes on the American public. Perhaps you’re just more comfortable around snake oil salesman than those of us who oppose such an obviously un-American interpretation.

      Thanks for stopping by and feel free to try to win us over to your point of view. Debate is, after all, fundamentally American.

      Pw

      Reply
    • John Flanery

      Mike, what you left out of your history is that these people who had “organized a corporate form” were prosecuted because they had accepted donations from businesses. People who 1) organized using the corporate form for expressive purposes, 2) funded their activities from donations, and 3) did not accept donations from businesses or unions, were already protected under the Massachusetts Citizens for Life case of 1986.

      What the Citizens United ruling did was create a right for corporate managers to force shareholders to fund political positions which those shareholders might not wish to fund.

      Reply
  11. Veteran

    Should the government limit money as a form of speech? No, as a general rule, the premise is correct. One should be able to spend monies to advance their platform, communicate ideas, or to establish organizations. The concept, in the political arena, that unlimited money from a single individual or organization to promote a candidate, or political idea is skewing the political system in this country. Our government is becoming a Plutocracy and not a Republic as was intended. Citizens’ United decision is enabling this distortion of the political system.

    Reply
    • VictorMTA VictorMTA

      Veteran, government controls the spending of money routinely. It is the ONLY way to change our plutocracy into a democratic Republic “as was intended.” The Buckley decision has enabled this distortion of the political system.

      Reply
    • McQ

      Wrong, candidates should all get the same amount of $ to spend on campaigns in order to take $ out of the equation. Candidates should be elected based upon their principles and ideas rather than $$$.

      Reply
  12. Camilla

    Thank you SO much for writing this out! This is exactly what I’ve been thinking while working on a piece of legislation for my debate class. I was starting to get really frustrated by all of the articles defending SCOTUS’s decisions regarding it.

    Reply
  13. Joe Conrad

    To call oneself an orginalist and then claim the first amendment allows unlimited financing of political campaigns, as Scalia did flies in the face of reason.
    I will believe money is speech when my payroll check gives me directions to the bank. I will believe corporations are people when Texas executes one.

    Reply
  14. robert

    In any other demorcratic country on this Earth donating boney to goverment officials in considered “bribe” and is subject to punishment . No wonder some Banks and Compsnyes became “too big to fail”

    Reply
  15. paschal

    absolutely it can be yes

    Reply

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