Free Speech and Campaign Contributions

Update re Stephen Colbert and PAC:

www.rollcall.com/news/Stephen-Colbert-PAC-FEC-video-205563-1.html?ET=rollcall:e10287:80103659a:&st=email&pos=epol

Today, class, we will deal with that strange position of our time, the legal argument that money, in the context of political donations, is speech; that huge political donations are a form of political participation like other ways of participating; and that corporations are persons and can contribute just like anybody else. You buy—pun intended—this kind of argument? Fine. Then let’s see how it works.

[I hope that my own judgment is clear from the tone of the foregoing, but to make it explicitly clear at the outset, in my judgment money is not speech.]

Let’s set up a simple algebra equation to clarify the legal argument. In this equation, money is speech (actually, only sometimes, but we’ll get to that later):

money = speech

In this world, “Arithmetic is commutative, don’t you see,” Tom Lehrer said. If money is speech, then speech has to be money, right? Yes, I see Socrates over there in the corner, nodding his head in agreement. Good; with me so far:

speech = money

Applying this equation broadly, any citizen worth his salt can substitute a speech for the rent, can pay for groceries by talking at the cash register, can send a novella for the automobile insurance premium. It doesn’t even have to be a good speech or novella. All money of the same denomination is of equal value.

Well, no. We have to limit the speech-is-money equation to politics. If giving unlimited amounts of money to a candidate is good and acceptable, then unlimited talk to a candidate must be. Dollars, or other denominations of money, are all equal, but the more the better; therefore all speeches of the same size must be equal, but the more the better. Putting the same thing another way, if it is of value to a candidate to receive money, the more the better, then it must be of value to the candidate to receive your writing or talking, the more the better.

Or we could try the same speech-is-money equation another way. Since there is no such thing as too much money (in this construct), there is no such thing as too much speech. Coprolalia on the subway is no reason to pull someone in for mental health issues.

Again limiting the equation to politics, if money in political donations is just as acceptable in unlimited amounts, then unlimited volume in political speech must be just as acceptable. Good news for all the selfish slobs or hired provocateurs out there: no matter how loud you yell, or how much you prevent other people including the candidate from being heard, you cannot be thrown out. If it is good for individual citizens and groups to participate in the political process by discussion, then it must be even better, or at least as good, for individual citizens and groups to participate in the political process by yelling. It worked for the Brown Shirts.

Anybody still think speech, in politics, is money? –Yes, yes, Mr. Thomas. Certainly, some speechwriters are paid, the rightwing noise machine generates large amounts of money, and corporations and other entities hire spokespersons. It is easy to find examples of speech that involve getting paid. It is also easy to find examples of saying the wrong thing and then not getting paid. Since, counterfeit aside, there is no such thing as wrong twenty-dollar bills (look up your notes on denominations, above), that’s not looking like a good line of argument. One could go farther on your side of the argument, and bring up the old saying that time is money. Sending money saves the candidate time; sending the candidate your wisdom in words might save him or her time, again depending on content. But once again, all Jacksons and Benjamins are of equal weight.

By the way, the Supreme Court has consistently upheld financial disclosure requirements set by Congress. A federal candidate who receives money is supposed to report it. If the equation of speech to money were applied consistently, a candidate who received your verbal wisdom would be required to report that.*

We agree, one hopes, that even in politics, speech is not money.

speech [not equal to] money

In algebra, the simple equation is commutative: Speech is not equal to money; therefore money is not equal to speech.

money [not equal to] speech

The Supreme Court ruling that political money is in some ways speech came in Buckley v. Valeo (1976). Congress in 1971 had passed the Federal Election Campaign Act, attempting to require public disclosure of financial contributions. From the Federal Election Commission (FEC):

“Following reports of serious financial abuses in the 1972 Presidential campaign, Congress amended the FECA in 1974 to set limits on contributions by individuals, political parties and PACs. The 1974 amendments also established an independent agency, the Federal Election Commission (FEC) to enforce the law, facilitate disclosure and administer the public funding program.”

Among other provisions, the 1974 law prohibited political donations from foreign nationals; donations from federal contractors—although individual employees of contracting companies could still donate, up to the legal limit; and direct donations from corporations, labor unions and national banks—although individuals in those entities could donate. It also set legal limits on individual donations, now $2,400 per person, on campaign committee donations, and on how much a candidate could spend of his own money.

This law was challenged in court by plaintiffs including former GOP Sen. James L. Buckley and former Democratic White House candidate Sen. Eugene McCarthy, who probably got rolled. The argument was raised that limits on campaign expenditures violated First Amendment clauses on freedom of speech and of association. In Buckley, the Court said some yeses, some no. Specifically:

“2. The Act’s contribution provisions are constitutional, but the expenditure provisions violate the First Amendment. Pp. 12-59.

(a) The contribution provisions, along with those covering disclosure, are appropriate legislative weapons against the reality or appearance of improper influence stemming from the dependence of candidates on large campaign contributions, and the ceilings imposed accordingly serve the basic governmental interest in safeguarding the integrity of the electoral process without directly impinging upon the rights of individual citizens and candidates to engage in political debate and discussion. Pp. 23-38.

(b) The First Amendment requires the invalidation of the Act’s independent expenditure ceiling, its limitation on a candidate’s expenditures from his own personal funds, and its ceilings on over-all campaign expenditures, since those provisions place substantial and direct restrictions on the ability of candidates, citizens, and associations to engage in protected political expression, restrictions that the First Amendment cannot tolerate. Pp. 39-59.”

If you get money from someone else, it is a contribution; if you get it from yourself, it is an expenditure. Reasonable enough, certainly—but not much like ‘expression.’ Try the money-is-speech equation here. If someone else talks to you, it is speech, but if you say something, it is not? If you give money to someone else, it is money, but if you give it to yourself, it is a different kind of money? Campaign law generally requires disclosure of “received” and “paid,” with contributions to self or contributions from outside groups, etc., falling into the “received” column.

Regardless of validity, however, at least the self-versus-other construct is simple and consistent, maybe with some touching hope of mapping onto the ancient meum and tuum. But when corporations and outside interest groups get the limits lifted on them, even that distinction is no longer colorable.

To be continued

Note: Eight justices participated in Buckley. Mr. Justice Stevens did not participate.

*Generally candidates are required to report in-kind contributions. If an expert speechwriter, for example, were to produce speeches for a candidate gratis, the candidate should report same. But in-kind contributions are reportable only if they have value—monetary value. So if you call speech money, then you’re in the odd position of saying that some money is not money. This gets close to saying that if the candidate loses anyway, then no reporting requirement applies. Theoretically we apply the law to all candidates, win or lose. Otherwise it is not law.

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