Over at Slate, Temple law professor David Kairys argues that conservative judges have been inconsistent in enforcing the principle that spending money can have a speech component protected by the First Amendment. He writes:
The first theory appeared in a 1976 decision, Buckley v. Valeo, which invalidated some campaign-finance reforms that came out of Watergate. The Court concluded that most limits on campaign expenditures, and some limits on donations, are unconstitutional because money is itself speech and the “quantity of expression”—the amounts of money—can’t be limited.But in subsequent cases, the conservative justices who had emphatically embraced the money-is-speech principle didn’t apply it to money solicited by speakers of ordinary means. For example, the court limited the First Amendment rights of Hare Krishna leafleters soliciting donations in airports to support their own leafleting. The leafleting drew no money-is-speech analysis. To the contrary, the conservative justices, led by Chief Justice Rehnquist, found that by asking for money for leafleting—their form of speech—the Hare Krishnas were being “disruptive” and posing an “inconvenience” to others. In other words, in the court’s view, some people’s money is speech; others’ money is annoying.
The problem with this argument is that the Hare Krishna case did not involve a money-as-speech claim. The Hare Krishna leafletters were not trying to spend money in order to be heard, only find their efforts to spend money blocked by law. Instead, they were trying to speak in order to raise money. In order to, well, have more money. Whatever you think of the money-as-speech argument — and I have found Eugene’s short article on it quite persuasive — it doesn’t seem to be implicated in a case that involves the regulation of speech directly.
byomtov says:
Eugene’s article is quite interesting. I note that he does defend direct contribution limits, distinguishing them from independent expenditures. If I understand correctly, he views contributions as more or less similar to gifts, which can be limited.
Where I have difficulty is in seeing a clear boundary between independent expenditures and gifts. Under what reasonable definition of “gift” is an ad supporting a candidate not a gift to that candidate?
January 24, 2010, 4:36 pmTNeloms says:
I’m pretty surprised at how bad the Hare Krishna analogy is. How does the money-is-speech theory mean that you’re allowed to solicit money from people in any way you want? Are you allowed to solicit speech from people in any way you want? I wonder how Prof. Kairys would respond to this post.
January 24, 2010, 4:47 pmPeter says:
What if they were inconsistent? Or didnt respect precedent? The sc reporter for the national journal suggests conservatives can never complain about jud activism again. What if past sup ct precedents were at odds with the first amendment? It is not activism if the ct restores the original scope of a clause of the const, even if it overrules longstanding precedents in doing so. The idea is to enforce the Constitution, not the goofball precedents that supposedly require us to acquiesce in the mangling of it–regardless of whether they were issued ten years ago, or 100 years ago.
January 24, 2010, 5:09 pmThe Volokh Conspiracy » Blog Archive » The Hare Krishna Airport Case says:
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January 24, 2010, 5:13 pmDavid Nieporent says:
Under the same definition as the one in which giving a donation to some charity in my name is not actually a Chanukah present to me.
January 24, 2010, 6:34 pmCrazyTrain says:
I am surprised an actual law professor is making the “money is not speech” argument. I think that is more of a talking point than a serious legal argument. None of the Justices have ever bought that argument — Stevens’ dissent has some rhetoric that could be interpreted by an unsophisticated reader to be that argument, but he clearly does not buy into that argument. Whether or not Citizens United was correctly decided or not (I am very ambivalent about that), but the two main talking points I have seen coming from critics of the decision (money is not speech and corporations are not persons) are not really serious arguments, and no Supreme Court Justice seems to buy into those talking points (except for rhetorical flourish here and there).
January 24, 2010, 8:26 pmbyomtov says:
David,
If I give a donation in your name there is no direct benefit to you. You may like it, but that’s about all.
OTOH, when I pay for an ad that says “Re-elect Senator Foghorn,” I am providing a direct benefit to Foghorn.
Perhaps I should have said that I can’t think of a reasonable definition under which a campaign contribution is a gift and an independent expenditure is not. Does it matter if I pay for your car or just give you the money to buy it?
The latter is slightly more efficient, it’s true, because it gives you control over what car to buy, or even whether to buy one. But in the context of campaign expenditures the difference isn’t huge. Maybe a $1000 expenditure is only as valuable as a $900 contribution. But even so, it’s a gift.
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January 24, 2010, 9:27 pmalligator says:
byomtov:
You’re focusing too much on whether different transactions can be characterized as gifts. (“Transactions” isn’t the best word here, but the best I can for now.) Your last sentence touches on the rationale for treating contributions and independent expenditures differently: contributions are more “valuable” and thus pose a greater risk of corruption (or merely the appearance of corruption) through quid pro quo.
An independent expenditure “is ‘independent’ only if the individual making the expenditure does not coordinate or consult in any way with the candidate or campaign (or agent of the candidate or campaign) benefiting from the communication.” FEC Citizens Guide. Consulting with the campaign on how you will spend the money makes the expenditure a coordinated expenditure, which is treated like a direct contribution because of the risk of quid pro quo or the appearance of quid pro quo. Theoretically, there can be no quid pro quo if an expenditure is not discussed with a candidate or a candidate’s agents.
January 24, 2010, 9:58 pmDilan Esper says:
I happen to think both Professor Kerr’s point and Professor Kairys’ point are right.
Professor Kerr is totally right that soliciting money to speak is different than spending money to speak. For one thing, solicitation doesn’t usually carry message other than “give money”, where as spending on speech directly carries a message. For another thing, the usual issue with solicitation is what you can do on private property or in a nonpublic forum.
But Professor Kairys is also right because his underlying point is that conservatives are more sympathetic to claims of people who have their own money and wish to spend it on speech than they are to claims of people who need to raise money in order to speak. In other words, it’s entirely possible that one’s sympathies in solicitation and political expenditure cases track one’s general belief about the extent that government should be able to “level the playing field” and correct for income distribution issues– conservatives view such things with distrust and therefore both find a problem with campaign finance laws and find no problem with prohibitions on soliciting money for advocacy. Whereas liberals’ sympathies run the other way.
For everyone’s information, Professor Kairys is a pretty established critical legal studies type, and this is a point that they hammer about how our politics influences which “neutral” principles we choose to apply.
January 24, 2010, 9:58 pmbyomtov says:
Alligator,
Theoretically, there can be no quid pro quo if an expenditure is not discussed with a candidate or a candidate’s agents.
The theory is nonsense.
Certainly a direct contribution is more valuable than an independent expenditure. But that doesn’t mean an independent expenditure is without value to the candidate. A $1000 expenditure may only be as valuable as a $500 contribution, but that just means that the risk of a quid pro quo is at the level of a $500 contribution, not that there is no risk.
The mistake here is claiming that the two are completely different, rather than just two versions of the same thing – spending money to help a candidate get elected. One method – direct contribution – may be more effective than the other (though not necessarily – corporate advertising may well be more effective than some campaigns’ efforts) but so what? The other, independent expenditure, still helps the candidate.
January 24, 2010, 10:15 pmRicardo says:
byomtov, even if your argument is true that still leaves the question over whether both independent expenditures and direct contributions should be regulated or whether neither should. I don’t see the case for regulating both (again, assuming your argument) to be a slam dunk by any measure. Rupert Murdoch owns several newspapers at this point and newspapers have a long tradition of endorsing candidates. Is the government going to start regulating endorsements in newspapers as contributions or prohibiting them altogether? Or will government start regulating which campaign-related stories newspapers can or cannot publish. Where would that leave freedom of the press?
The other alternative to not regulating either direct contributions or independent expenditures would be to draw a somewhat arbitrary line between the two to ensure that political speech is not being directly regulated by the government.
January 24, 2010, 10:24 pmalligator says:
byomtov,
Yeah. SCOTUS alluded to that in Buckley v. Valeo:
I realize now that my use of “theoretically” indicates that the distinction between independent expenditures and contributions rests on a theoretical absence of quid pro quo. It doesn’t, and I didn’t intend to suggest that it did. I was trying to illustrate the basis for concluding that independent expenditures have less power than contributions to improperly influence a candidate. It’s the greater risk of quid pro quo that is inherent in contributions that justifies more stringent regulation.
The mistake is assuming that the two must be completely different to be treated differently. Have you read Buckley?
January 24, 2010, 11:57 pmJohn says:
I made a point very similar to this on Reddit: The author of this article uses a very distinguishable case (the Krishna case) to prove his point. Funding a documentary containing political speech is very different from soliciting donations.
January 25, 2010, 12:03 amSoronel Haetir says:
byomtov,
Does it matter whether the independent expenditure is for candidate X or against candidate Y? The person who wants to see Y lose may well not care who X is.
And I would say that is a large part of the rationale, someone willing to make an uncoordinated effort likely has different motives for their action than seeing X elected.
This is especially true when you look at the groups that have been bringing these challenges. Wisconsin Right To Life and Citizens United exist for reasons other than elections. That much of their activity revolves around electioneering is beside the point.
January 25, 2010, 3:06 ammrshl says:
I think the larger point, which I’ve seen made in a few places, is that justices on both sides of the ideological divide are at least moderately selective about the type of speech they seek to protect. Why, in this case, are content-neutral rules on ad spending unconstitutional, but okay in areas where expanding the scope of the speech (i.e., more picketers, more pamphleteers) also costs money? I don’t see all that much difference between bugging me in an airport and bugging me with ads I can’t escape. Raising money=Raising votes.
For me, I guess, meaningful campaign finance reform would be a bit like municipal rules on billboards. I’d like to see Chief Justice Rehnquist’s “anti-disruption” theory of speech limitation applied evenly and pervasively against all manner of campaign ads.
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January 25, 2010, 9:57 amGordo says:
What say you, Professor Kerr, to the second argument of the Kairys piece, that the decision carries the fetish of “corporations are people” to ridiculous and unprecedented (for a century) extremes.
For those originalists out there, do you really think James Madison and the drafters of the First Amendment had corporations in mind when they drafted it?
January 25, 2010, 11:10 ambyomtov says:
Alligator,
The mistake is assuming that the two must be completely different to be treated differently. Have you read Buckley?
I confess I haven’t read Buckley. Of course two things don’t have to be completely different to be treated differently. I guess where we differ is in how similar independent expenditures and direct contributions are. I think an IE (i’m tired of typing all that) really is the same thing, only possibly less valuable. (Possibly more valuable too, in that some voters may give more weight to a recommendation that does not come from the campaign itself.) Call it a discounted campaign contribution.
An analogy might be a large donor to a university who wants to control the design of the building he’s paying for. The donor’s design may not be exactly what the university would prefer, so in that sense the amount spent doesn’t deliver full value, but it’s a gift to the university nonetheless.
Soronel,
Does it matter whether the independent expenditure is for candidate X or against candidate Y? The person who wants to see Y lose may well not care who X is.
Good question. My immediate dodge is that since most general elections, and many primaries, only involve two significant candidates it really doesn’t matter in most cases. Indeed, in such cases I may well contribute to X not out of any love for X but to see why defeated. I’m still helping X. Certainly the corruption possibilities remain the same. Wasn’t that more or less what Caperton was about?
And I would say that is a large part of the rationale, someone willing to make an uncoordinated effort likely has different motives for their action than seeing X elected.
Someone willing to make an uncoordinated effort may also do so because a coordinated effort would be illegal. In any case, I’m not sure why the motive matters. The opponent of the candidate I oppose is the beneficiary of my activities.
This is especially true when you look at the groups that have been bringing these challenges. Wisconsin Right To Life and Citizens United exist for reasons other than elections. That much of their activity revolves around electioneering is beside the point.
“Beside the point?” I’m not sure what you are arguing here, or why it should matter what their main goals are. In any case, I’m not really bothered by advocacy groups, which I see as actual “voluntary associations” acting politically. My main objection is to large for-profit corporations doing so. I think way too much is made of the rather incidental fact that both are corporations. That doesn’t make them the same thing.
January 25, 2010, 11:19 amJoe says:
The article is dubious on various grounds. Slate would have done well of instead of having three critical articles (why not toss in Laurence Tribe’s piece over at Scotusblog?) to have at least one more supportive piece. Glenn Greenwald underlines this does not mean you are supportive of corporations (or Republicans) generally. As GG himself noted, the ACLU is supportive of the ruling too (at least, some members).
A footnote of sorts — the article also noted that the Supreme Court didn’t start protecting the 1A until the 1930s. But, this is fictional too. There even is a good book about free speech during the “forgotten years” that underlines that courts, including the Supreme Court, did not simply do nothing pre-1930. In fact, back in the day, the Supreme Court struck down a common law charge of seditious libel arising during the Jefferson Administration with the Court conservatives apparently disagreeing.
January 25, 2010, 11:33 amShelbyC says:
Does it matter if the Direct Contribution is to the candidate directly or to the “Committee to elect candidate X”?
January 25, 2010, 11:47 amalligator says:
byomtov,
I think excerpts from Buckley can do a much better job of explaining why the First Amendment doesn’t allow IEs to be regulated as stringently as DCs. From the syllabus:
It’s important to remember that IEs and DCs are protected First Amendment expression. From the Buckley opinion:
Generally speaking, the First Amendment prohibits the government from restricting speech and especially political speech. Of course, it’s not an absolute prohibition. Political speech may be burdened by a narrowly a tailored law that serves compelling state interests. To determine whether the burden is permissible, it must be weighed against the importance of the interest and the efficacy of the law in achieving that interest. The burden on political speech is more substantial when IEs are limited than when DCs are limited. Again, from the opinion:
(citations omitted.) I think we’ve previously agreed that unlimited DCs carry a more significant threat of corruption than IEs. This means taht the state’s interest in preventing corruption through IEs is weaker than with DCs. Yet, limits on IEs create a greater burden on protected speech. Thus, IE spending limits restrict more speech than is necessary to serve the state’s interest in preventing corruption, and the First Amendment will not tolerate that.
In your analogy to the university, a donor who wants to control the design of the building is more like someone who makes a coordinated expenditure. A more apt analogy to an IE would be someone who spends millions on ads promoting the university, but without every consulting anyone at the school. The messages are positive, but they might not hit the points that the university prefers to highlight. In fact, the donor’s opinion of positive may differ from the university’s, e.g., “This is the craziest, most partying school in the country!”
January 25, 2010, 5:14 pmbyomtov says:
Alligator,
Thanks for getting those quotes from Buckley. Does “not regulated as stringently as DC’s” necessarily mean “not regulated at all?”
I think the heart of our disagreement is that I believe IE’s are much closer to DC’s than you do, or than the court does. My initial comment was just that IE’s are a gift like DC’s. You think the gap is bigger than I do.
I think we’ve previously agreed that unlimited DCs carry a more significant threat of corruption than IEs.
I’m not sure we have. Certainly it’s greater assuming the same amount of money is involved, especially since there is more room for the candidate to finagle personal benefits from DC’s. But if the money is spent properly – on the campaign – then I’m not convinced there’s a huge difference.
In fact, the size of possible IE’s is another potential source of corruption. Five thousand dollars spent by an advocacy group is not much threat. Hundreds of thousands spent by a large corporation is more of one.
Actually, my objections have more to do with the issues involved in (large for-profit) corporate IE’s rather than those by advocacy groups. Not only is potential size an issue, but so are the agency problems. I’ve commented on these at length on other threads, so suffice it to say I think there are genuine problems with allowing corporate management to spend corporate funds in support of a political candidate who many shareholders oppose – which is to say almost any candidate. I don’t think any of the defenses of this take into account the realities of corporate governance or investment practices.
January 25, 2010, 7:24 pmmatthew phillips says:
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January 27, 2010, 11:44 am