Money and Speech:

This morning's campaign speech case from the Supreme Court, Randall v. Sorrell, leaves me with little new to say, which is fortunate because I have little time right now to say much about it. Still, Justice Stevens's repetition of the old saw that "it is quite wrong to equate money and speech" struck me as mistaken enough to be noteworthy. (The occasional argument of some critics of campaign finance law that money is indeed speech is equally mistaken.)

The reason that the Court struck down the law here — which, among other things, would have limited a candidate's total spending for Vermont state representative races to $2000 for both the primary election and general election put together — is not that money is speech. Rather, it's that restrictions on spending money to speak are restrictions on speech, and "money is speech" is, I think, a misleading way of expressing this claim.

Just consider some analogies. Would we say "money is abortion"? I doubt it, but a law that banned the spending of money would surely be a serious restriction on abortion rights (whether or not you think that the Court was right to recognize such rights). A law that capped the spending of money for abortions at a small amount, far smaller than abortions often cost, would likewise be a burden on abortion rights, and dismissing this argument as "it is quite wrong to equate money and abortion" would be unsound.

Likewise, we wouldn't say "money is education," or "money is lawyering." Yet a law that capped private school tuitions at $2000 (not just limited the amount of government-provided scholarships, but capped private spending by parents for tuition) would be a serious, likely unconstitutional, burden on the right to educate one's child at a private school. Likewise, a law that barred wealthy defendants from spending more than $20,000 — or even $200,000 — for assistance of counsel would violate the Sixth Amendment. Even if for some reason you thought that these laws should be upheld, the response that "it is quite wrong to equate money and [education / lawyering]" would be an unsound response.

Similarly, we wouldn't say "air travel is speech," or "computing power is speech." Yet surely a law that would limit the use of air travel or computers in political campaigns would be understood as a serious restriction on speech.

I also have differences with other aspects of Stevens's opinion, as well as with other opinions, including the Thomas/Scalia concurrence, but I lack the time to discuss them here. For now, I just thought that "money is speech" / "money isn't speech" is a common enough catchphrase in these debates (going all the way up to the Supreme Court) that I thought it might be helpful to speak briefly about it. For my criticisms of the Thomas/Scalia position, see Part III of this article.

Note also this amusing summary of the opinions, by Allison Hayward (Skeptic's Eye).