>>EUGENE VOLOKH: Is money speech? Say the
government says you can publish a newspaper but only if you spend less than $1,000 or
even $1,000,000 to do it. Or, you can build a church, but only if it costs less than $1,000.
Or, you can hire a lawyer to defend you in a criminal trial, but you can’t spend more
than $1,000. All of these would be obviously unconstitutional. Why? Because money is the
press? Or money is religion? Or money is a lawyer? Obviously not. Instead, it is because
restricting spending money to exercise a Constitutional right: press, religion, counsel, unconstitutionally
interferes with that right. The same is true for speech. Congress has tried to restrict
independent spending in political speech: money spent by corporations, by labor unions,
even by individuals, but the Supreme Court has said that restrictions abridge the freedom
of speech and so violate the First Amendment. Of course, lots of people responded by saying,
“but money isn’t speech!” and as we saw, that is absolutely right, but quite beside the
point. Indeed, as Liberal Supreme Court Justice Breyer put it, “[the First Amendment is involved
here], not because money is speech (it is not); but because it enables speech,” and
that means restricting spending of money for speech disables speech. If you can’t spend
more than $1,000 on election-related speech, a prohibition that specifically targets such
speech, you can’t engage in most effective kinds of speech in that subject. Speech is
not money, speech is speech, but most effective speech costs money. You can see the same by
looking at things from another direction. Say the government said, “You can’t fly places
to give speeches advocating the election or defeat of a candidate.” That’s unconstitutional,
but not because air travel is speech, it’s because limiting speakers’ air travel interferes
with our ability to speak, and singles out political speech for such interference. The
same is true for spending money. That doesn’t mean there aren’t perfectly plausible arguments
for some kinds of campaign finance restrictions, but “money isn’t speech” is not a sound argument.
True, money isn’t speech, but restricting the spending of money on speech, does restrict
speech, and that’s why the Court has said Congress cannot make such laws, those laws
abridge the freedom of speech, and thus, violate the First Amendment.
To learn more about the Federalist Society, check out www.fed-soc.org. *Professor Volokh speaks on his own behalf
and not on behalf of the Federalist Society.