Limiting Money, Limiting Speech

This is the third in a series of posts on corporations adapted from CCP Founder Brad Smith’s comments on an article that appeared in The Frum Forum on Tuesday, October 27th. Some of the information provided by Brad in the comments section was so informative, we made the decision to appropriate the text and repurpose it as a series of blog posts. 

Imagine, for example, if the government said you could not spend any money to travel – would that limit your right to travel? Suppose the government said you could not contribute money to churches: would that limit your right to practice religion? Suppose the government said you could not spend money to buy property: would that restrict your right to acquire property? Surely the answer to all three questions is yes.

Now suppose the government said the New York Times could only spend $120,000 a year to publish (a little more than the limit on total political contributions at the federal level): would that limit the Times’ First Amendment rights? Of course it would (the Times, if you don’t know, spends way more than $120K per year to publish).

Contrary to what some think, the Supreme Court does not believe that “money is speech.” Money, after all, is money, paper or coins or whatever else people use for money. What the Supreme Court has recognized is that if the government prohibits you from spending money for the purpose of speaking (or the press), it violates the right to free speech (or press, or assembly). This is not controversial in legal circles. Since the Supreme Court first addressed the issue in Buckley v. Valeo, 20 men and women have sat on the Supreme Court. Nineteen of them (all except Stevens) have agreed that limits on spending money for political debate or contributing to candidates raise serious First Amendment issues. (Stevens waffled back and forth on the issue, but always agreed that spending money was entitled to some level of protection under the Constitution.)

So the only real disagreement on the Court has been whether or not their are compelling enough reasons for the government to breach the constitutional protection to spend money for political speech.

Is money speech? Of course not. Does spending money, or pooling it with the funds of others to spend, often enhance the reach and effectiveness of one’s speech? Of course it does. Is the First Amendment at issue when the government seeks to limit speech for political purposes? Of course it is.