Introducing Symposium on Deborah Hellman’s “Money Talks, But It Isn’t Speech”
posted by Frank Pasquale
It’s an honor to introduce Deborah Hellman and the participants in this cyber-symposium. In the wake of the sweeping Citizens United decision, Hellman has returned to first principles in her article “Money Talks, But It Isn’t Speech.” Justice Kennedy based the majority opinion in Citizens United on the assumption that spending and speech are interchangeable. But what if this equivalence does not hold? Might a future Court declare Citizens United “not well reasoned” because it “puts us on a course that is sure error” (to borrow Kennedy’s characterizations of the precedents that Citizens United overruled)?
A vibrant conservative legal movement has seized the mantle of “popular constitutionalism” to demand that courts reinterpret key constitutional provisions in order to reflect popular opposition to some provisions in the recently passed health reform legislation. But Citizens’ United has proven far less popular than health reform; “the court’s ruling is opposed, respectively, by 76, 81 and 85 percent of Republicans, independents and Democrats,” and by 80% of the nation as a whole. Though I was ready to give up on campaign finance regulation three years ago, numbers like these convince me that the Court needs to listen to scholarship like Hellman’s now more than ever.
At least some justices have shown remorse for deregulatory dogmatism. Might the Court back down from its current war on campaign regulation? If it is so inclined, will arguments like Hellman’s help it “see the light” and reclaim the egalitarian roots of democratic governance? To consider these and other issues raised by Hellman’s rigorous and illuminating paper, we’ve invited an all-star cast of legal thinkers:
Erwin Chemerinsky
Louis Michael Seidman
Lawrence Solum
Zephyr Teachout
Some of our regular crew of perma-bloggers & guests will likely have some contributions, as well. Whatever you think of campaign finance reform, I’m confident you’ll find both Hellman’s article and our guests’ commentaries to be bold and invigorating contributions to legal theory.
Photo Credit: Rob Lee/Flickr, Money Shirt.
May 2, 2010 at 11:41 pm
Posted in: Constitutional Law, Current Events, First Amendment, Jurisprudence, Law and Inequality, Legal Theory, Media Law, Politics, Symposium (Money Talks), Uncategorized
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Responses (5)
Brett Bellmore - May 3, 2010 at 6:40 am
Ink prints, but it isn’t “press”. “Money is speech” is a deliberate over-simplication. The Court’s position is that regulating money spent on speech is regulating speech, not that money IS speech. The money is just a ‘handle’ Congress is using to reach the speech, which is why the law regulates the spending of the money based on the content of the speech, rather than some content neutral criteria.
So, “The first contribution this Article makes is to identify this question: when do constitutional rights generate a penumbral right to spend money?”
Answer: When the regulation of the money has no purpose except to further a scheme to infringe the constitutional right. Why did Congress chose, in McCain/Feingold, to regulate money spent on political speech, but not on discussing professional sports? Because it was an effort to regulate political speech, not money.
SCOTUSblog » Monday round-up - May 3, 2010 at 9:36 am
[...] Concurring Opinions introduces a cyber-symposium on Deborah Hellman’s article “Money Talks, But It Isn’t Speech,” which challenges the central premise of Citizens United and the rest of “campaign finance law, namely that restrictions on giving and spending money constitute restrictions on speech and thus can only be justified by compelling governmental interests.” [...]
Maryland Conservatarian - May 3, 2010 at 1:41 pm
“The first contribution this Article makes is to identify this question: when do constitutional rights generate a penumbral right to spend money?”
One difference I like to cite to my European counterparts in business is that, generally, here in the US, it’s legal unless it is specifically illegal. The right to spend my money (fruits of my labor – Remember John Locke!!) is not a ‘penumbral’ right, divined only by the careful study of progressive law profs and Prof. Hellman’s phrasing is at odds with my long-time understanding that Governments don’t give me “rights” – at best they protect them and otherwise guarantee not to get in my way of exercising them.
Brett is right – this is simply a matter of regulating political speech and has nothing to do with controlling the flow of green pieces of paper.
Logan Roise - May 4, 2010 at 11:27 am
@Maryland Conservatarian…
You’re right in that spending your own money is not a “penumbral” right but the issue here is not whether private citizens have a right to spend freely on political speech. Instead, the issue is whether labor unions and corporations have the same inalienable rights that you and I have.
Maryland Conservatarian - May 4, 2010 at 2:01 pm
Mr. Roise: the paper by Prof. Hellman doesn’t seem to make that distinction…and besides, I can only imagine the furor that would result if rules were established that allowed me to opine on an election while limiting such (no doubt opposing) expressions by the NY Times or MSNBC.
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