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Minnesota Law Review 95:3 (February 2011)

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  1. Re: Deborah Hellman, Money Talks but It Isn’t Speech, 95 Minn. L. Rev. 953 (2011)

    “Rather than asking whether a restriction on campaign giving or spending violates the First Amendment, we should ask instead, when do constitutional rights generate a penumbral right to spend money?”

    How about, when the real purpose of restricting the expenditure of money is, in fact, to restrict the exercise of the right?

    In campaign ‘reform’, the restrictions on money spent on speech are not incidental to political speech, independently justified on some unrelated basis. They’re conditioned on the speech being political speech, (The law doesn’t care if you spend money advertising soap during a campaign.)and they’re specifically intended to regulate the resulting speech in ways which could not be done directly without violating the 1st amendment.

    IOW, the money is just a handle to get at the speech. And everybody knows it.

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