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),
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.”
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.