Removing direct contribution limits: free speech and disclosure.

• Author: Byrne, Adam G.

Carol is a politician. She is a state legislator, to be more specific, and a very good one. Quickly rising through the ranks of her party, Carol has come to be revered by both her constituents at home and her colleagues at the Capitol. Propelled by her popularity, Carol seeks to unseat a member of Congress in an upcoming election. As a challenger, Carol faces the typical disadvantages that come with running against an incumbent: she has less experience, less recognition, and less clout. One area where Carol might be able to outperform her opponent, however, is raising money. Carol is a master fundraiser. Her charm and charisma have enabled her to befriend some of the wealthiest individuals in her district.

Dora is a wealthy businesswoman who happens to be close friends with Carol. The two share similar views when it comes to political, economic, and social issues. Dora hopes Carol gets elected and, in order to fully support her campaign efforts, she offers Carol a $25,000 check. As beneficial as that money would be for Carol, she must refuse it. Under federal contribution limits, she can accept only $2,600 per election from any one individual.

Contribution limits, therefore, impose significant difficulties. Not only do they burden Carol's efforts to raise money, but they also restrict Dora's interest in spending money the way she desires to express her political beliefs.

The purpose of this article is twofold. First, I will demonstrate why direct contribution limits placed on campaigns ought to be removed. To do this, I will argue that money is in fact speech, and therefore is entitled to strict constitutional protection. Second, I will argue that disclosure requirements can act as an adequate safeguard against corruption.

Buckley's Basics

Buckley v. Valeo, decided in a 1976 per curiam opinion, is the wellspring of campaign finance law. Many of the Supreme Court cases dealing with campaign finance revolve around this decision, and an abundance of academic literature also draws upon it in one way or another. This section examines the Buckley Court's decision and its implications.

Giving and Spending Money Equals Speech

The idea that money is equal to speech underlies the holding of the Supreme Court in its seminal campaign finance case, Buckley v. Valeo (424 U.S. 1 [1976]). The Buckley Court repeatedly affirmed its belief that contribution and expenditure limitations violate the First Amendment rights of political expression and association (424 U.S. at 14, 23, 54). The Court is led to conclude that money is equal to speech by the fact that "virtually every means of communicating in today's mass society requires the expenditure of money" (424 U.S. at 19). For example, imagine that Senator Chuck Schumer (D-NY), as part of his 2016 reelection campaign, wanted to send out a mailer boasting of all his accomplishments since he took office. To do this, he would have to spend tens of thousands of dollars to mail the flyer to his constituents in New York City, let alone the entire state. Of course, he has alternative options. He could knock on doors or drive a soundtruck around Manhattan, opting not to spend any money communicating. That this alternative gives him any chance of winning the election, however, strains credulity. He could also rely on free social media platforms to disseminate his speech, but many successful political campaigns end up paying for social media ads or outsourcing their accounts to help increase their presence on these platforms. For a New York senatorial candidate, as for any viable contender, spending money is a necessary part of communicating.

To give another example, imagine that a wealthy actor wants to become more politically active and, in order to be seen as a stalwart Democrat, makes a sizeable donation to the California Democratic Party. He could have simply drafted a press release, e-mailed it to a tabloid, and had them blog about it free of charge. But by actually donating money, he is making a statement that he truly stands behind the Democratic cause. Regardless of whether one thinks money is or is not speech, the old maxim still stands: "Actions speak louder than words."

In equating money with speech, the Buckley Court gives an analogy of its own: "Being free to engage in unlimited political expression subject to a ceiling on expenditures is like being free to drive an automobile as far and as often as one desires on a single tank of gasoline" (424 U.S. at 19). Many who oppose the idea that money is equal to speech take this metaphor and deconstruct it. For instance, even after the car runs out of gas, the driver is still able speak, for speech is unlimited (Levinson 2013: 898). Arguments such as this, however, misconstrue the metaphor. The car is what symbolizes speech, not the driver of the car. So when the car (speech) runs out of gas (hits expenditure ceiling), the car can no longer drive (no more speech).

Despite these examples and analogies, some believe that, because money is merely the antecedent to speech, it does not merit the same level of First Amendment protection as speech itself (Levinson 2013: 899). A brief search in any ordinary dictionary would support this position. According to the American Heritage Dictionary, "speech" is defined as "the faculty or act of speaking; the act of expressing or describing thoughts, feelings, or perceptions by the articulation of words." No connection with money can be drawn from this definition, so it is quite obvious that money is not speech in the literal sense. However, it is the act of giving and spending money that equals speech.

Even then, some claim that although the act of giving and spending money does serve an expressive function, it is not sufficient to fall within the protection afforded by the First Amendment. In explaining this position, Professor Deborah Heilman (2011: 967) notes how money facilitates the exercise of other fundamental rights and yet spending money in connection with some of these rights is not protected. As an example, she brings up the fundamental right to vote and how that does not include the right to buy or sell votes (Heilman 2011: 976). This is true because money has nothing to do with the right to vote. Giving and spending money, however, has become an integral part of the right to speak freely in the context of political campaigns. One's donation or receipt of a political contribution constitutes a form of political expression and therefore it merits constitutional protection. In other words, giving and spending money is so closely linked to the right to free speech that, unlike buying and selling votes, it should fall within that right's penumbra. Therefore, "the right to speak necessarily encompasses the right to pay for the speech, just as the right to counsel encompasses the right to pay for a lawyer and the right to free exercise of religion includes the right to contribute to a place of worship," as Levy (2010) argues.

Justice White's opinion in Buckley touches directly on the question of whether giving and spending money equals speech. In his mind, "the argument that money is speech and that limiting the flow of money to the speaker violates the First Amendment proves entirely too much" (424 U.S. at 262). Money alone, he argues, is not speech. Only speech is speech. Money simply facilitates someone's speech. To support his argument, Justice White points out that many campaign activities are not themselves communicative or even remotely related to speech. After all, spending campaign money on a candidate's travel and lodging expenses surely does not amount to that money being used for political expression. Justice White goes on, however, to discuss how till campaigns differ, with some spending less money while still managing to communicate more. Yet to suggest that the level of efficiency with which candidates use their money has any sort of impact on the constitutional protection afforded to their speech is to stray away from the issue at hand. Whether candidates spend every penny wisely or waste a million dollars on an unsuccessful television ad, their political speech still deserves to be free from any government restriction limiting its amount.

Justice Stevens echoes Justice White's concerns in Nixon v. Shrink Missouri Government PAC (528 U.S. 388 [2000]), but offers an alternative reason for why money is not equal to speech. In his view, "Money is property; it is not speech" (see Sharma 2008). Money, whatever its worth, is simply a medium of exchange. Speech, on the other hand, has nouns, verbs, and adjectives. It has the "power to inspire volunteers to perform a multitude of tasks on a campaign trail, on a battleground, or even on a football field," tasks that money can only pay people to do (528 U.S. at 398). Generally, deprivations of property violative of the Fifth Amendment receive a lower level of constitutional scrutiny than infringements on speech that contravene the First Amendment. The Constitution, therefore, protects the right to "use one's own money to hire gladiators," but a deprivation of this property interest by enacting campaign finance restrictions deserves a lower level of review than an act depriving one of the right to say what one pleases. Mixing money and speech, it seems, would be a category error.

Unfortunately for Justice Stevens, the argument that money is completely distinct from speech quickly falters. As the late Justice Scalia stated in a recent interview, "You cannot separate speech from the money that facilitates the speech. It is utterly impossible." (1) A glimpse at newspapers proves his point. If the government were to tell publishers that they could only spend so much money in publishing their newspapers, the government would certainly be abridging their freedom of speech, not just depriving them of property. Even Justice Breyer, who has consistently voted in favor of upholding campaign finance restrictions, has admitted...