“Money is Not Speech” Misses the Point

The news of the U.S. Senate Judiciary committee approving a constitutional amendment allowing Congress and the States greater power to restrict political spending may bring attention to the issue of campaign finance. A fairly popular phrase in populist circles (especially on the left) used in favor of campaign finance restrictions is “money is not speech“.

Notably, former Supreme Court Justice John Paul Stevens used the phrase when describing his opposition to the Citizens United decision, which allowed corporations and other associations to make independent expenditures on political campaigns. Maryland State Senator Jamie Raskin even claimed that treating the spending of money as free speech would require that prostitution be protected as a form of free speech.

Frankly, the “money is speech” characterization is disingenuous. The point is not that spending money on things generally is a sign of one’s preferences and thereby a form of “free speech”. The point is that spending money on resources and labor directly used in the act of communication is protected.

For instance, most publishing companies are corporations. If a publishing company spends money from its general treasury to publish a book containing political advocacy, should that act be protected under the First Amendment? I would say so. In this case, the free speech rights of the authors would be at stake.

And yet this not was the view of the government in Citizens United (see this link, pp. 26-29). The case was later re-argued, and the government decided that there might be other reasons justifying a challenge to restrictions on book publishing (see this link, pp. 64-65), but the same basic argument still applies to broadcast media, which was the issue in Citizens United. Should a TV broadcaster be allowed to spend its general treasury funds on producing and distributing political content?

When the issue is phrased in terms of spending money on speech, rather than just spending money, it becomes clear that restricting political spending is, in fact, a form of censorship.

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