[EL] Money as speech

Tue Sep 23 09:49:59 PDT 2014

Howard's query and the responses to it speak to an even more interesting
issue--how so much of the election law or campaign finance debate rests
upon simplistic and inapt analogies and metaphors.   Money as speech,
analogies in BUCKLEY to gas tanks and cars or megaphones or soundtrucks,
parties as filters for special interests.   I would even argue that
economic market metaphors for how we describe democracy are often
counterproductive.  I could go on.  Lawyering in part is about drawing
analogies but when we become trapped by them we make bad law and reach
foolish conclusions.  Perhaps we need to start by recognizing that money is
money and constitutionally protected speech is constitutionally protected
speech and then ask whether the former should be recognized as the latter.
Remember in Buckley the Court never ruled that money is speech only that it
bore some speech-like properties that implicated First Amendment concerns.
I now see too many advocates trapped by their analogy that money is speech
and fail to ask if there are fundamental differences between how money
operates in a economic market versus what should be the allocative criteria
for power in a democracy.  Money may or may not have a place in democracy
or it may have a different role in politics than it does in buying coffee
at Starbucks.

  I am now afraid that the new debate--corporations as persons or not--is
about to become a new analogy that will become simplified and obscure
debate. Roland's recent post on CU, persons, and speech is an example of
that.  My point of posting my Constitution Day lecture lecture last night
was for people to  understand two things.  First, debates over who or what
is a person or property go back to the the 1787 constitutional debates.
Second, simply saying something is a person does not resolve the debate
over what rights are afforded.  Children are persons but do not share the
same rights as adults, for example.  If one were to line all all the
possible entities or beings that could be deemed persons and then think
about all the possible forms of civic activities or forms of civil
engagement that are possible, we would find that some persons can do some
activities but not others.  By that, even if corporations are people should
they be allowed to vote?  Conversely, even if a political party cannot vote
does that mean it should not be able to speak?  Simplistic metaphors or
analogies that take on an all-or-nothing aspect blur these issues.

I only wish the world were so simply that saying money is speech, democracy
is a marketplace of ideas, or corporations are persons entitled to free
speech wold resolve things.  Such statements as Dan Lowenstein suggest,
only make things more obscure.  I sound like a broken record by now but I
try to talk about these issues in my book ELECTION LAW AND DEMOCRATIC
THEORY.  We really need to approach questions about money in politics from
a more holistic, theoretical, thoughtful, and even empirical point of
view.  I hope this listserv is more than a simply place of advocacy that
rises about the banal world of pop culture which demonstrates what is wrong
when we get trapped by our analogies and metaphors.

On Tue, Sep 23, 2014 at 11:24 AM, Paul Sherman <psherman at ij.org> wrote:

>  Howard,
>
>
>
> These aren’t simple-minded questions; you’ve pointed out widely used
> analogies in campaign-finance debates, and they merit a serious response.
> So here goes:
>
>
>
> There are two questions here:  Why is money speech?  And why isn’t money
> merely volume?
>
>
>
> As to the first question, the argument for why the First Amendment is
> implicated when government restricts spending on political speech has been
> covered in lots of places, so for more on that, I’ll just direct you to
> this blog post by Eugene Volokh, which I would have just ended up
> paraphrasing anyways: http://www.volokh.com/2010/01/24/money-and-speech-2/
> .
>
>
>
> As to the second question, the analogy of money to a sound system fails
> because it conflates two different meanings of the word “volume.”  Volume
> can mean the quantity or power of sound, or it can mean a quantity or
> amount of something else.  These different meanings matter.  If you’re on a
> public street and someone is using a bull horn at high volume, it may make
> it physically impossible to hear other messages.  But if you’re on a public
> street and someone is engaged in a “high volume” of handbilling, there’s no
> problem, because handbilling—even a lot of it—doesn’t prevent you from
> discerning other messages.  Similarly, a high volume of television ads
> doesn’t actually prevent you from hearing other television ads, because
> television ads run sequentially, not simultaneously.  (There are lots of
> other relevant distinctions between publicly owned physical spaces and
> privately owned communications media that make the broader “drowning out”
> analogy either unpersuasive or constitutionally problematic, but these few
> are sufficient to convey my point.)
>
>
>
> To be sure, volume in the sense of amount makes a big difference in
> political debates.  A message heard or read multiple times is likely to be
> more persuasive than a message heard or read only once.  But as a general
> matter we don’t allow (or trust) the government to regulate speech for the
> purpose of ensuring that speakers are not unduly persuasive.  Instead, we
> let speakers decide for themselves how much of their own money they want to
> spend on peaceful political expression, and we trust the public to decide
> for itself whether that expression is persuasive.
>
>
>
> Best,
>
> Paul
>
>
>
>
>
>
>
> ---------------------------
>
> Paul M. Sherman
>
> Senior Attorney
>
> Institute for Justice
>
> 901 N. Glebe Rd., Suite 900
>
> Arlington, VA 22203
>
> Phone: (703) 682-9320
>
> Fax: (703) 682-9321
>
> psherman at ij.org
>
>
>
> *From:* law-election-bounces at department-lists.uci.edu [mailto:
> law-election-bounces at department-lists.uci.edu] *On Behalf Of *
> demesqnyc at aol.com
> *Sent:* Tuesday, September 23, 2014 9:57 AM
> *To:* law-election at department-lists.uci.edu
> *Subject:* [EL] Money as speech
>
>
>
> I have what is probably a simple and simple minded question for the
> assembled delegation: Why is money speech?  It seems to me money is not
> speech, it is volume.  We would not allow the person with the largest sound
> system to drown out all others, we would regulate the volume at which they
> communicate.
>
>
>
> Why is money different.  It does not convey any message in and of itself,
> it simply amplifies the speech you choose to make.  It is not only
> acceptable, but expected, that we will not allow unlimited noise, on our
> streets or in our debates, why is money more sacrosanct than the maximum
> ability of my vocal cords and diaphragm?
>
>
>
> Howard Leib
>   ------------------------------
>
>
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