Isn't the whole "is money speech?" stuff distracting? If I self-publish a book supporting candidate X, that's clearly speech / political expression. But it costs money. If there are limits on expenditures, then once I've paid to print a large enough number of copies, the government can stop me from printing more; that is, a law limiting expenditures permits the government to censor my book. Since the gov't can't stop me from printing as many cookbooks as I want, this is a content-based restriction. Clearly a violation of the First Amendment!
I think that’s an argument that Buckley was (in some respects) decided correctly given the First Amendment. But “money is speech” is the fundamental issue driving the ability to cap campaign expenditures, not whether corporations enjoy 1A rights like ordinary people.
Right, the comment was meant in response to your remark in the piece, about the Buckley decision, that "I’m not convinced that spending huge sums of money should count as protected speech." Why not? (The question is really whether spending huge sums of money *on speech/expression* should be protected.)
Great point, you’re right—I think I was being a bit sloppy about which premise I was rejecting.
For example, instead of denying “money is speech,” you could also insist that there’s a compelling government interest in evening the playing field during an election.
Or you could find fault with some broader feature of our political system, e.g. judicial review. But that’s not really a problem with the quality of the Court’s decision, just about the system that empowered them to make it—a system that isn’t going away anytime soon.
This is helpful. I had not heard of Buckley before now, and I suspect most other people in my position (educated but not experts in con law or campaign law, but worried about money in politics) are similar.
In that regulation, you can also see the legal basis for why 501(c)(4) social welfare orgs can do so much political spending, in that they only need to “primarily” engage in social welfare promotion (which includes lobbying, as distinct from intervening for/against specific candidates).
Isn't the whole "is money speech?" stuff distracting? If I self-publish a book supporting candidate X, that's clearly speech / political expression. But it costs money. If there are limits on expenditures, then once I've paid to print a large enough number of copies, the government can stop me from printing more; that is, a law limiting expenditures permits the government to censor my book. Since the gov't can't stop me from printing as many cookbooks as I want, this is a content-based restriction. Clearly a violation of the First Amendment!
I think that’s an argument that Buckley was (in some respects) decided correctly given the First Amendment. But “money is speech” is the fundamental issue driving the ability to cap campaign expenditures, not whether corporations enjoy 1A rights like ordinary people.
Right, the comment was meant in response to your remark in the piece, about the Buckley decision, that "I’m not convinced that spending huge sums of money should count as protected speech." Why not? (The question is really whether spending huge sums of money *on speech/expression* should be protected.)
Great point, you’re right—I think I was being a bit sloppy about which premise I was rejecting.
For example, instead of denying “money is speech,” you could also insist that there’s a compelling government interest in evening the playing field during an election.
Or you could find fault with some broader feature of our political system, e.g. judicial review. But that’s not really a problem with the quality of the Court’s decision, just about the system that empowered them to make it—a system that isn’t going away anytime soon.
This is helpful. I had not heard of Buckley before now, and I suspect most other people in my position (educated but not experts in con law or campaign law, but worried about money in politics) are similar.
Good article. I think you have mixed up civic orgs and local associations of employees a little bit—see https://www.ecfr.gov/current/title-26/chapter-I/subchapter-A/part-1/subject-group-ECFR062882ac6495890/section-1.501(c)(4)-1.
In that regulation, you can also see the legal basis for why 501(c)(4) social welfare orgs can do so much political spending, in that they only need to “primarily” engage in social welfare promotion (which includes lobbying, as distinct from intervening for/against specific candidates).
Thanks, Some Lawyer! Super helpful.
I probably should've said more to explain lobbying vs. intervening, and I'll clarify the paragraph on 501(c)(4) orgs.