[EL] Money as speech

Tue Sep 23 15:35:05 PDT 2014

Ditto network news, or publication of the NY Times. Lots of people would volunteer to serve as newscasters or newspaper writers.

“I’m ready for my closeup, Mr. Martens” (Vice President and General Manager, CBSNews.com).

Mark S. Scarberry
Professor of Law
Pepperdine Univ. School of Law

From: law-election-bounces at department-lists.uci.edu [mailto:law-election-bounces at department-lists.uci.edu] On Behalf Of Sean Parnell
Sent: Tuesday, September 23, 2014 2:59 PM
To: 'Stephen Spaulding'; 'Benjamin Barr'; 'Schultz, David A.'
Cc: 'law-election at department-lists.uci.edu'
Subject: Re: [EL] Money as speech

    Money is property; it is not worship.

    Worship has the power to inspire volunteers to perform a multitude of works in society, in alleviating misery and injustice, or even on a battlefield. Money, meanwhile, has the power to pay hired clerics to perform the same tasks. It does not follow, however, that the First Amendment<http://www.law.cornell.edu/supct-cgi/get-const?amendmenti> provides the same measure of protection to the use of money to accomplish such goals as it provides to the use of ideas to achieve the same results.1<http://www.law.cornell.edu/supct/html/98-963.ZC.html#FN1>

…

The right to use one’s own money to hire clerics, or to fund “works by proxy,” certainly merits significant constitutional protection. These property rights, however, are not entitled to the same protection as the right to worship as one pleases.

Sean Parnell
President
Impact Policy Management, LLC
6411 Caleb Court
Alexandria, VA  22315
571-289-1374 (c)
sean at impactpolicymanagement.com<mailto:sean at impactpolicymanagement.com>

From: Stephen Spaulding [mailto:SSpaulding at commoncause.org]
Sent: Tuesday, September 23, 2014 5:45 PM
To: Sean Parnell; 'Benjamin Barr'; 'Schultz, David A.'
Cc: 'law-election at department-lists.uci.edu'
Subject: RE: [EL] Money as speech

Useful place to cite the concurrence of Justice Stevens in Nixon v. Shrink Missouri Government PAC, 528 U.S. 377 (2000):

    Money is property; it is not speech.

    Speech has the power to inspire volunteers to perform a multitude of tasks on a campaign trail, on a battleground, or even on a football field. Money, meanwhile, has the power to pay hired laborers to perform the same tasks. It does not follow, however, that the First Amendment<http://www.law.cornell.edu/supct-cgi/get-const?amendmenti> provides the same measure of protection to the use of money to accomplish such goals as it provides to the use of ideas to achieve the same results.1<http://www.law.cornell.edu/supct/html/98-963.ZC.html#FN1>

…

The right to use one’s own money to hire gladiators, or to fund “speech by proxy,” certainly merits significant constitutional protection. These property rights, however, are not entitled to the same protection as the right to say what one pleases.

Stephen Spaulding|Policy Counsel
Common Cause
sspaulding at commoncause.org<mailto:sspaulding at commoncause.org>
202-736-5781
Twitter: @spauldingcc<https://twitter.com/SpauldingCC>
1133 Nineteenth St. NW | Washington, DC 20036
Commoncause.org<http://www.commoncause.org/>| Facebook/CommonCause <http://www.facebook.com/commoncause>  |  @CommonCause <http://www.twitter.com/CommonCause>

From: law-election-bounces at department-lists.uci.edu<mailto:law-election-bounces at department-lists.uci.edu> [mailto:law-election-bounces at department-lists.uci.edu] On Behalf Of Sean Parnell
Sent: Tuesday, September 23, 2014 1:58 PM
To: 'Benjamin Barr'; 'Schultz, David A.'
Cc: 'law-election at department-lists.uci.edu'
Subject: Re: [EL] Money as speech

I’d also add that you can apply the same concept to just about any other constitutional right. You have a 1st Amendment right to worship as you please, but what if you prohibited the expenditure of money on clerical salaries? I think everyone would understand that to be a severe infringement on the 1st Amendment. Prohibit money on the expenditure of firearms and ammunition? Or for those who believe it’s part of the constitution, prohibit the expenditure of money on abortion? How about prohibiting the expenditure of money to retain lawyers?

Money is not speech, but it is the single most valuable and effective medium of exchange that one can employ in the exercise of speech rights, and other rights as well. If anyone doubts this, I’d love to hear an argument from them on why prohibiting the expenditure of money on clerical salaries would not be an infringement on the First Amendment, or any of the other examples I’ve provided for that matter.

Sean Parnell
President
Impact Policy Management, LLC
6411 Caleb Court
Alexandria, VA  22315
571-289-1374 (c)
sean at impactpolicymanagement.com<mailto:sean at impactpolicymanagement.com>

From: law-election-bounces at department-lists.uci.edu<mailto:law-election-bounces at department-lists.uci.edu> [mailto:law-election-bounces at department-lists.uci.edu] On Behalf Of Benjamin Barr
Sent: Tuesday, September 23, 2014 1:29 PM
To: Schultz, David A.
Cc: law-election at department-lists.uci.edu<mailto:law-election at department-lists.uci.edu>
Subject: Re: [EL] Money as speech

Thinking about money "in politics from a more holistic, theoretical, thoughtful, and even empirical point of view" suggests we might think about First Amendment precedent more broadly to understand why the funding of speech is constitutionally consequential in election law.  What Buckley understood was that "virtually every means of communicating ideas in today's mass society requires the expenditure of money."  424 U.S. 1, 19.  And Buckley expressly rejected the argument that money is somehow just conduct and not intrinsically connected to First Amendment protection.  Id. at 16-17.  I understand you do not like that equation very much.

Members of the Supreme Court, practitioners, and academics of all ideological flavors have long recognized the importance of ancillary elements that make the exercise of free speech a reality.  We know, for example, that coercing certain groups to fund food advertising is unconstitutional.  U.S. v. United Foods, Inc., 533 U.S. 405 (2001).  But those were just "mandatory assessments" and not speech, right?  We know that union members cannot be compelled to make contributions that support ideological and political programs.  Abood v. Detroit Bd. of Ed., 431 U.S. 209 (1977).  But those were just "union dues" right?  Likewise, state bar associations cannot use lawyer fees to fund ideological and political activity in an involuntary way.  Keller v. State Bar of California, 496 U.S. 1 (1990).  But those were just lawyer fees, right?  Money matters.

We react with appropriate astonishment when governments shut down printing presses, impose bizarre and difficult parade registration requirements so civil rights groups cannot march, or impose severe licensing regimes to protect against "dangerous" or "obscene" ideas.  Our kindly and benevolent regulators will inform us that printing presses need safety regulations, civil rights groups constitute a rowdy menace, and dangerous and obscene ideas lurk behind each and every doorway.  We simply need more government to protect us against the bugaboo du jour.  Today that bugaboo is money in politics.

Thankfully in every instance described above we appropriately understand that limits on ancillary prerequisites to speech matter just as much as direct bans of speech.  Attempts to excise money, or other necessary prerequisites of speech, are simply measures to reduce the ultimate protection of the First Amendment.  As for that holistic notion, I'll take a pass.

Forward,

Benjamin Barr

On Tue, Sep 23, 2014 at 12:49 PM, Schultz, David A. <dschultz at hamline.edu<mailto:dschultz at hamline.edu>> wrote:
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<mailto: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<tel:%28703%29%20682-9320>
Fax: (703) 682-9321<tel:%28703%29%20682-9321>
psherman at ij.org<mailto:psherman at ij.org>

From: law-election-bounces at department-lists.uci.edu<mailto:law-election-bounces at department-lists.uci.edu> [mailto:law-election-bounces at department-lists.uci.edu<mailto:law-election-bounces at department-lists.uci.edu>] On Behalf Of demesqnyc at aol.com<mailto:demesqnyc at aol.com>
Sent: Tuesday, September 23, 2014 9:57 AM
To: law-election at department-lists.uci.edu<mailto: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
________________________________

Spam<https://antispam.roaringpenguin.com/canit/b.php?i=04MSBVkjH&m=814d1328b87d&t=20140923&c=s>
Not spam<https://antispam.roaringpenguin.com/canit/b.php?i=04MSBVkjH&m=814d1328b87d&t=20140923&c=n>
Forget previous vote<https://antispam.roaringpenguin.com/canit/b.php?i=04MSBVkjH&m=814d1328b87d&t=20140923&c=f>

_______________________________________________
Law-election mailing list
Law-election at department-lists.uci.edu<mailto:Law-election at department-lists.uci.edu>
http://department-lists.uci.edu/mailman/listinfo/law-election

--
David Schultz, Professor
Editor, Journal of Public Affairs Education (JPAE)
Hamline University
Department of Political Science
1536 Hewitt Ave
MS B 1805
St. Paul, Minnesota 55104
651.523.2858<tel:651.523.2858> (voice)
651.523.3170<tel:651.523.3170> (fax)
http://davidschultz.efoliomn.com/
http://works.bepress.com/david_schultz/
http://schultzstake.blogspot.com/
Twitter:  @ProfDSchultz
My latest book:  Election Law and Democratic Theory, Ashgate Publishing
http://www.ashgate.com/isbn/9780754675433
FacultyRow SuperProfessor, 2012, 2013, 2014

_______________________________________________
Law-election mailing list
Law-election at department-lists.uci.edu<mailto:Law-election at department-lists.uci.edu>
http://department-lists.uci.edu/mailman/listinfo/law-election

-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://webshare.law.ucla.edu/Listservs/law-election/attachments/20140923/c0bac7ba/attachment.html>