Money is not speech. That much is universally accepted and echoed among activists who abhor both the Citizens United and McCutcheon rulings. But the analysis has to go deeper than that. There was an example used once by a conservative commentator who defended Citizens United that recalled the days of the civil rights movements by pointing out how certain jurisdictions, notably within the South, would have tried to prevent the movement from going forward by monitoring or tracking donors to organizations like the NAACP. He then went on to make the, admittedly easy, intellectual leap and say that this means we can’t regulate campaign contributions. Does it though?
I don’t have any idea whether that commentator’s example was even true but I’m willing to speculate that donors to the NAACP and similar organizations probably were put under some sort of pressure and its certainly true that the FBI did monitor the Civil Rights Movement more broadly because of their communism paranoia. Why then can we still not call donations speech?
The thing about legality is that definitions differ based on context, intended purpose, and intrinsic conceptions of what is right and what isn’t. Anyone looking through important Supreme Court cases knows that the Court considers far more than just the texts of laws that they review. For proof, I refer you to Justice Potter Stewart’s comment on porn, “I know it when I see it.” Furthermore, even if there is a right, it is never unlimited and never should be as Justice Holmes’ example of shouting “FIRE” in a crowded theater aptly points out.
These two suppositions allow us to say the following. Restricting the act of donating (notice I say the act of donating, not the amount) to a particular political candidate, organization, etc. is a violation of free speech because the government is specifically targeting the ability of individuals to express preferences for a certain side over the other. It is not only restricting speech in a certain direction, but it is trespassing on obvious intrinsic limitations on government set forward by the Constitution.
But that’s not exactly what campaign donation limitations do. They are broad based bans that affect donations to every single candidate, party, or cause (PACs). Who an individual chooses to donate to is not affected. They can donate to whatever person or party their heart desires but are limited in terms of how much they donate overall. Notice here that the act of donation is not affected; speech isn’t touched. The dollar amounts of the donation are affected and they affect each individual equally regardless of circumstance.
With the dollar amounts, we’ve entered into the realm of power. It is intuitively understood that the more a person or organization donates, the more voice they will have with the politician seeking those donations since that politician’s continued employment likely depends on his or her ability to campaign. If campaigns can be bolstered, even a little bit, by cash infusions, that will go the extra mile in a political environment constantly running tight races every two years. Examples of this kind of thing come from across the political spectrum. Conservatives tear into labor unions for influencing Democratic politicians while Liberals lacerate big donors like the Koch Brothers or Insurance Companies. This is why the majority opinion of Citizens United was so befuddling when it openly failed to see how donations could ever influence a politician in one direction or another. It flies in the face of common sense.
Donor money, particularly if given in large amounts by single entities or persons slowly transforms from becoming a statement of support (speech) to becoming an institutionalized form of bribery (an exchange of favors) where the expectation is that certain forms of policy will be supported by the politician receiving the donation (thereby theoretically helping along their employment prospects). Just last week, several big name Republican contenders for 2016 visited with Sheldon Adelson in Las Vegas. He kept Newt Gingrich’s primary campaign afloat, donated gobs to Mitt Romney, and will be essential in funding whoever steps forward next time around. He has stated expectations that politicians be vocal in their support of Israel and that is reported to be one of the first things he asks potential surrogates.
Even if policies on the margin are altered to comply with donor wishes, expectations, or even interests, marginal additions add up to cause big changes in overall policy. Think of American environmental policy falling prey to climate deniers or health care reform being loaded down with giveaways to Insurance companies. These don’t just appear out of the good hearts (*cough*) these politicians have. Following the money never seemed like such an appropriate term.
What campaign contribution limits appear to be, under this analysis, are an exchange of favors. These favors can be limited by capping them to smaller amounts and ensuring that one person’s vast fortunate does not drown out the ability of a poorer person to be heard. In a sense, they protect speech.
Admittedly, my analysis is basic in character. It leaves open questions over the universality of contribution caps, differentiating between people and institutions, how much the donation caps need to be, public financing of elections, etc. Important as those questions may be, they were not my primary aim. It was to preserve the idea that government regulation of campaign donations should not be viewed as a violation of free speech but rather a key bulwark against institutional corruption.
I think it’s appropriate to end with this final point. Even Shawn McCutcheon’s own lawyer eventually conceded in an interview with the Huffington Post that money isn’t speech. But he still argued throughout the case that overall contribution caps were still preventing an exercise of speech. By doing what exactly? It seems Mr. Backer, the lawyer in question, doesn’t seem to understand the implication his argument implies; either that or he doesn’t want to.
Till next time,
The Interview Article in Question: