Money and Free Speech

In favor of campaign finance laws that limit speech, have you ever heard the argument that “money isn’t speech?”  Truth of the matter is, it’s probably not.  But there’s a caveat…

Apply this argument to other constitutional rights, and the argument starts to dissipate like dew in the morning sun.  Says Eugene Volokh, a constitutional scholar:

Likewise, money isn’t education, and it isn’t lawyering. Yet a law that capped private school tuitions at $2000 (not just limited the amount of government-provided scholarships, but capped private spending by parents for tuition) would be a serious, likely unconstitutional, burden on the right to educate one’s child at a private school. Likewise, a law that barred wealthy defendants from spending more than $20,000 — or even $200,000 — for assistance of counsel would violate the Sixth Amendment. Even if for some reason you thought that these laws should be upheld, the response that “it is quite wrong to equate money and [education / lawyering]” would be an unsound response.

Similarly, we wouldn’t say “air travel is speech,” or “computing power is speech.” Yet surely a law that would limit the use of air travel or computers in political campaigns would be understood as a serious restriction on speech.

Get it?  Money isn’t speech, but it does enable people to act on all the other rights ensured by the constitution.  There’s a reason that the founders wanted to protect life, liberty and property and designed the constitution to do as much.  They understood that all those rights didn’t matter if people were not allowed to spend their money as they saw fit.  And it’s fitting to recall, in this week just after we have celebrated Independence Day, just how they pledged their property in the Declaration of Independence:

And for the support of this Declaration, with a firm Reliance on the Protection of divine Providence, we mutually pledge to each other our Lives, our Fortunes, and our sacred Honor.

(Thanks to Peter Sherman at the Congress Shall Make No Law blog for the note and the idea)


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