A major case under consideration this term by the Supreme Court is McCutcheon v. Federal Election Commission, which, if the appellants are successful, will do for wealthy individuals what Citizens United v. Federal Elections Commission (2010) did for corporations (yes, and labor unions, if any): allow them to give essentially unlimited amounts of money to political parties and candidates. These cases take as their precedent a 1976 decision, Buckley v. Valeo, which held that, since money was a speech-equivalent, and political speech is almost totally unrestricted according to the first amendment, any law limiting expenditures for political parties or candidates was severely restricted.
Citizens United extended Buckley to apply to corporations as well as people, since corporations (according to an 1886 opinion, Santa Clara County v. Southern Pacific Railroad) are persons (though not, as Mitt Romney would have it, people). So between Buckley and Citizens United and several other decisions to the same effect, the result would be that for all intents and purposes, democracy would be replaced in the U.S. by plutocracy: government by, of, and for the wealthy. (You can certainly argue that it already is, but it could get a lot worse.)
All the decisions starting from or based on Buckley make use of Buckley’sequation of money and speech. At the time, in a dissent, Justice John Paul Stevens took exception to the majority’s assumption of this equivalence, saying, “Money is property. It is not speech.” But his objection, being a dissent, has been ignored.
One reason why Stevens’ objection has not had much influence on later decisions is that it doesn’t really get to the root of the problem, the confusion between money and speech (although it was meant to). The failure of the majority to adopt Stevens’ distinction is not the source of our current problems.
There is no logical reason to conflate money and speech, nor is there any logical reason to make them completely distinct. The equation of money and speech seems to me to be a non sequitur, like “a woman without a man is like a fish without a bicycle,” and, as such, constitutes a logical fallacy. At the same time, Stevens’ distinction between money (as property) and speech as something else, unspecified, doesn’t illuminate the falsity of the argument. Property and speech are not necessarily in opposition. A book for instance, could represent both property and speech. Speech could be a kind of property, intellectual property, under some circumstances. So Stevens’ attempt to unmask the dangerous false equivalence has not been all that helpful.
To see that falsity clearly requires an understanding of what speech is, and the true connection between political speech and money. Speech, or language (here a synonym), is a rule-governed system of communication, engaged in for the purpose of transferring meanings from one human being to another. It is always symbolic: words arranged in grammatical sentences refer to ideas and objects outside of language itself. Money is arguably also symbolic, standing for the things it can buy, but even so it is concrete where language is abstract: you don’t carry a wad of nouns around in your wallet.
But there is a connection between money and the meaning-exchange of language: money is to speech like a megaphone or microphone: it amplifies its effectiveness, spreading it around and giving it more substance. But we would not include the microphone or megaphone used to transmit language as a part of the communication, or an aspect of its meaning. It is merely a tool that can be used to potentiate an utterance.
It has been recognized for a long time by constitutional scholars that, while the message of political speech cannot be limited under the first amendment, the time, place, and manner in which that speech is transmitted can be restricted. While one candidate can say vile things about another without legal constraint, he or she can do so only as long as the utterance does not cause problems for those within range of the nasty words. So the candidate can express any opinions he or she desires at length in print, or electronic media, or in a public venue set aside for political discourse; but if he or she tries to say the same words at 3:00 a.m. outside your window, using a megaphone, you have the constitutional right to make the noise stop – regardless of what is being said.
If this is so, then money, as megaphone-equivalent rather than speech-itself-equivalent, can certainly be constrained, since like the megaphone it does not express a political message (or any other): it only allows such a message to be expressed more effectively.
If the Supreme Court were to realize that this money-speech connection is the right one, it could no longer make use of arguments that conflate the two. Will SCOTUS see the light? Right.
The Berkeley Blog
Tuesday, 15 October 2013