Author: Erwin Chemerinsky

1

Money Talks Symposium: Parsing the Questions

It has been a pleasure to participate in this brief exchange about Professor Hellman’s excellent article.  As I have read the posts, including in response to my earlier message, I think that there is a tendency to combine several distinct, though interrelated, questions.

One question is whether restrictions on spending money in election campaigns should be subjected to strict scrutiny.   This was the holding of Buckley v. Valeo and 1976 and the assumed premise for the Court’s decision in Citizens United v. Federal Election Commission.  It is this premise that Professor Hellman powerfully challenges.  If spending money in election campaigns is regarded as conduct that communicates, then restrictions need meet only intermediate scrutiny, rather than strict scrutiny.   Also, I don’t think that there’s been enough attention to arguing that restrictions on spending are content-neutral regulations that would need to meet only intermediate scrutiny.  Professor Hellman makes an important contribution by suggesting that the relationship between spending money and constitutional rights is much broader than campaign spending or even than the First Amendment.

A second question is whether corporations should have the same rights as individuals.  This, too, is a premise of Citizens United.  Ironically, in 2006, in Garcetti v. Ceballos, Justice Kennedy, writing for the same majority as in Citizens United, said that the First Amendment protects only speech “as citizens.”  More importantly, Citizens United’s protection of corporate speech rests on the earlier decision in First National Bank of Boston v. Bellotti.  It protected corporate speech for the instrumental reason of better informing the public.  But then that should open the door to allowing restrictions on corporate speech if it could be shown that such expression drowns out other voices in the electoral process.

A third question is whether restrictions on campaign spending meet strict scrutiny.  My sense is that this is most likely to be shown in judicial elections or in elections in smaller communities.  In each instance, the government is more likely to have a compelling interest, though one which may not persuade a majority of this Court.

All of these questions are important and all have been touched on in this exchange.  But I also think that it is important for the sake of clarity to keep them separate.

3

Money Talks Symposium: Money as a Means to More Speech

I am delighted to participate in this discussion about Professor Hellman’s excellent article. Having read earlier messages from today, I find that I am much more in agreement with Professor Teachout than with Professor Seidman.

Professor Hellman rightly questions whether spending money in election campaigns should be regarded as a form of speech in itself. As she rightly points out, this is the premise of Citizens United v. Federal Election Commission and has been assumed ever since Buckley v. Valeo. It is often forgotten that in Buckley, the D.C. Circuit came to an opposite conclusion and held that spending money in elections is not itself speech, but rather conduct that communicates.

Money is speech only in that spending money is a form of communicating a message of support. But as Buckley recognized, this is achieved by any size contribution or expenditure. Allowing unlimited contributions or expenditures does not necessarily (though it could) express greater support.

The real argument for protecting spending money in election campaigns is that money facilitates speech. More spending likely translates into more speech. But that does not make spending money speech, just something that leads to more expression. This is the central insight of Professor Hellman’s article: there is a relationship between money and many constitutional rights. Her article very carefully details the different types of relationships that might exist.

Most importantly, once it is recognized that spending money in elections is not itself speech, but rather only a means to more speech, then it should be appropriate to restrict spending to ensure that more speech really happens. In other words, once it is realized that spending money is a means to the end of more speech, then spending can be restricted if it is done for the sake of having more speech occur.