American Reason: Should political contributions be classified as free speech?

Campaign finance reform?
Money talks! But should it? — photo by Rachel Jessen

The Supreme Court has had yet another campaign finance case on its docket this session: McCutcheon v. Federal Election Commision. As in similar cases, the decision has hinged on how the Court views the relationship between money and freedom of speech, particularly whether or not donating money to political campaigns is protected by the First Amendment.

Matt Sowada: I’ve come to a horrible realization: The Supreme Court is correct in suggesting the spending of money is best viewed as a form of speech. We understand that the First Amendment protects more than just written and verbal communication. A law prohibiting someone from wearing a crucifix, hijab or Star of David would certainly be seen a violation of somebody’s right to express themselves. What is a campaign contribution but a communication that you endorse a particular candidate or policy? This seems to me to be well within the scope of “speech,” broadly understood. Now, bear in mind that I’m not necessarily saying that we shouldn’t set restrictions on contributions. If particular kinds of speech are harmful enough to society we can and do limit them. We might decide that certain species of political spending are deleterious enough to the country that the law must intervene to prevent them. However, if we do, we should be honest in what we are doing: limiting an individual’s ability to communicate.

Vikram Patel: Freedom of speech definitely covers a wide range of activities, but the ways in which we interact with money seem to diverge greatly from those covered activities. First, all of our transactions are regulated in some fashion. Whether it’s investing (where there are extensive regulations) or simply buying a gallon of gas (where there are federal excise taxes), every financial transaction has some level of government involvement. We don’t see the same level of involvement with speech.

Secondly, campaign contributions have been protected as speech because giving money to a candidate has been described as a way of expressing support for a candidate similar to actually vocalizing support for that candidate. However, this comparison doesn’t hold up in other situations. It is perfectly legal to express support for a terrorist organization but giving money to the same group is illegal. It is perfectly legal to express agreement with a judge’s decision but expressing that agreement with a large cash gift is illegal.

Matt: Well, your last point seems like an argument in my favor. If expressing support for a terrorist group or contributing to a political campaign were as likely to result in physical violence as writing a check to Al-Qaeda then they would be illegal, too. I think the reasoning behind banning financial donations to terrorists is the same that lead to laws against yelling “fire” in a crowded theater or calling upon a radio audience to attack somebody. It’s usually illegal to speak in a way that is obviously likely to cause immediate bodily harm.

While your second point feels like a non-sequitur, your first point is much more convincing, though mostly for what it implies. The fact that society allows government to interfere with financial transactions far more aggressively than it allows government to interfere with speech suggests that that we see the spending of money as fundamentally different from speech. I think you’ve talked me down from the ledge now. Perhaps money is not necessarily speech. Out of the theoretical realm and into the practical: Can you think of any way of limiting campaign contributions that might pass the Court’s scrutiny?

Vikram: Passing the Court’s scrutiny is the hardest part of this issue. Unfortunately, the Supreme Court disagrees with me with regard to the role money plays in our society. In 2010, the Supreme Court struck down large parts of campaign finance law with the ruling in Citizens United. With the 2011 ruling in McComish v. Bennett, the court struck down matching funds for publicly financed candidates. McCutcheon v. FEC decides the fate of aggregate liMatt Sowada and Vikram Patel, former hosts of American Reason, bring monthly political, social and ethical musing to Little Village.

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