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Category: Symposium (Money Talks)


Hellman on Confusing Restrictions with Incentives in McComish v. Bennett

My colleague Deborah Hellman has kindly offered to share her thoughts on McComish v. Bennett.  Our CoOp readers will remember our all-star symposium on Hellman’s important work Money Talks But It Isn’t Speech.  Here is her post:

Imagine you are an advisor to Presidential candidate Sarah Palin in the next election.  As you think about what she should say and when, you will no doubt consider the Tina Fey factor.  How will Fey respond?  Will a Fey sketch of Palin be too damaging?  Fey’s impersonation of Palin could even cause Palin to self-censor or even speak less.  Can we therefore conclude that Fey restricts Palin’s speech?  Of course Fey herself has a right to speak, so Palin has no grounds to complain but still the claim that Fey is restricting Palin’s speech is patently ridiculous.   But that is essentially the argument made by the Petitioners in McComish v. Bennett, the Arizona matching funds case argued yesterday in the Supreme Court.  The Petitioners argued that the Arizona law at issue unconstitutionally restricts the speech of candidates who do not avail themselves of public financing because, for example, “Arizona Taxpayers (one of the PACs challenging the law) chose not to speak in opposition to a publicly financed candidate to avoid triggering matching funds to that candidate.” Surely it isn’t enough that the law creates incentives for the petitioners not to spend money and speak, otherwise there would be a good argument for the claim that Fey’s comedy restricts Palin’s speech, and there is not!

Consider another example: suppose that the Arizona legislature, alarmed by high rates of childhood obesity in the state, adopts the following policy.  If snack foods are advertised during children’s programming, money is allocated to run ads for comparable amounts of time touting the delicious taste of fruit.  Could the snack food makers complain that their speech is restricted because this policy causes them to make strategic decisions about whether to advertise during children’s programs?

Of course, commercial speech is not political speech, but that’s beside the point.  The speech of snack food makers isn’t abridged by the fact that their decision about whether to speak is influenced by other speech.

The mistake of the petitioners in McComish is to focus on the effect that the law produces (chilling their speech) rather than the means by which this effect is produced.  Chilling speech through sanctions is problematic; chilling speech by more speech is not. Read More


Hellman on the fate of Arizona’s matching fund law

Below Deborah Hellman (whose work we recently featured in an online symposium) offers her thoughts on the Supreme Court’s reinstatement of the injunction against Arizona’s matching fund law:

On Tuesday, the Supreme Court reinstated the injunction against the application of Arizona’s matching fund law.  The law at issue in McComish v. Bennett provides matching funds for candidates accepting public funding whose opponents spend or benefit from independent expenditures which together exceed the initial grant of public funds.  The District Court initially issued an injunction.  The 9th Circuit vacated the injunction and the Supreme Court has now reinstated it.  As the concurring opinion of Judge Kleinfeld of the 9th Circuit points out, the law at issue contains no spending or contribution limits.  Why then is the First Amendment even implicated?

Speaking in response to a persuasive argument by an opponent is not a restriction on speech. The “remedy to be applied is more speech.” (Whitney v. California, Brandeis, J. concurring)  While the Court has held that restrictions on contributions or spending are restrictions on speech and in that way equated money with speech, these decisions do not lead to the conclusion that public funding of candidates raises First Amendment problems.  Rather, the Court has repeatedly approved of public funding as in line with the First Amendment.  Even if money facilitates speech, clearly spending can be met with more spending without raising any First Amendment problems.  Especially, as Judge Kleinfeld points out, “when the same subsidy is available to the challenger if the challenger accepts the same terms as his opponent.”

The plaintiffs argue that the fact that their opponents will qualify for matching funds if the plaintiffs spend more than a specified amount leads them sometimes to censor themselves.  The 9th Circuit majority rejects this claim because it finds insufficient evidence to support it.  But even this concedes too much.  The fact that government action may cause me to censor myself doesn’t by itself establish that the government action restricts speech.  It matters how the government action leads to self-censorship.  When Congress enacted civil rights laws, it changed norms of behavior such that racist statements were no longer socially acceptable.  In doing so, Congress may have caused some politicians to self-censor their racist remarks.  Yet clearly the enactment of civil rights laws does not abridge the freedom of speech of those who self-censor in response.  In order to raise a potential First Amendment issue, the state must act by restricting or punishing some speech or conduct. When the government speaks, as when it passes civil rights laws, any chilling of speech this causes raises no First Amendment problem.  Similarly, if the government offers money to candidates whose opponents spend a lot of money, the fact that this may chill some spending and thereby some speech is, quite simply, irrelevant. Read More


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.


Money Talks Symposium: Thanks so much

I just want to say thank you to Concurring Opinions for hosting this terrific symposium on my piece and to the commentators who posed such thoughtful and probing questions.  The piece will be much improved by this engagement.  Lastly, thanks to the readers who posted comments or simply read with interest.   I very much appreciate it all.


Money Never Stops Talking: Doctrinal Implications?

One of the (many!) interesting questions raised in this fascinating discussion is what, if any, doctrinal impact Hellman’s argument would have. I want to suggest two areas where it would make a difference.

(1) The first is that it would require a return to an explicit, grounded, technologically current examination of the resource link between money and speech rights (or money and politically influential speech), instead of skipping that step.

Buckley itself suggests that its money/speech conclusion is technologically and temporally bounded:

“A restriction on the amount of money a person or group can spend on political communication during a campaign necessarily reduces the quantity of expression by restricting the number of issues discussed, the depth of their exploration, and the size of the audience reached. This is because virtually every means of communicating ideas in today’s mass society requires the expenditure of money. The distribution of the humblest handbill or leaflet entails printing, paper, and circulation costs. Speeches and rallies generally necessitate hiring a hall and publicizing the event. The electorate’s increasing dependence on television, radio, and other mass media for news and information has made these expensive modes of communication indispensable instruments of effective political speech.”

If you take this passage seriously, it sounds a lot like Hellman; it includes a exploration of on the ground resource facts, and explicitly time-bounded observations about the contemporary material requirements of political speech/political influence (which it conflates). The Court refers to the resources required “in today’s mass society”, and references to television, radio, and “hiring a hall.”

It suggests that a significant part of the question is “the quantity of expression,” and the “dept of their exploration.”

Obviously the internet changes the capacity to publicly speak in great quantities and in great depth. The “humblest handbill” is now a facebook update, and does not require printing, paper, and circulation costs—it requires a visit to the public library.

Even the “size of audience reached”, unfortunately lined up as a parallel to depth and quantity, is complicated in an internet era–it is now possible, if not likely, to reach a massive audience without money.

This is not to say that political influence is cheap: today’s mass media is a confusing blend of concentrated MSM, the new data oligarchs like facebook and google news, and personalized media. But it is to say that the technological and media environment are radically different, and it is at least possible (though not likely) for someone with no money to have enormous political influence through online communications.

Under the money=speech rubric, this is not particularly relevant. Under money facilitates speech, these on-the-ground facts are critical: they are in fact the heart of the question.

(2) The second, related, is that it encourages a specific examination of how legislatures in fact distribute political speech and influence rights. Inasmuch as Congress chooses to enable some non-market based access to political speech, it would change the analysis. (Professor Solum and I have been discussing this in another comment thread.) So, for example, if the government created a matching funds system (like the system proposed in FENA in Congress now, where low dollar funds are matched), the amount an individual would have the constitutional right to spend might be diminished.

In both of these ways I suspect that Hellman’s argument would lead to a much more practical, less theoretical, approach towards political corruption and political speech, both of which tend to be overly abstracted and under-described in the courts.


Money Talks Symposium: Adequacy of What?

Thanks to Lawrence Solum for pressing me to clarify what I meant in my prior post regarding an adequate alternative method of distribution.  First, I do not believe – as Solum asserts – that “restrictions on speech are permissible only if government provides ‘an adequate alternative method of distribution.’”  Rather, there is a real and important difference between a restriction on speech and a restriction on spending that affects speech.  Restrictions on spending should not be treated as restrictions on speech in all cases.  The question I pose is this: when should restrictions on spending be treated as restrictions on an underlying right; or when do constitutional rights include a penumbral right to spend money?   When the state has removed the good that one wishes to spend money on from market-based distribution, no violation of the underlying right occurs.  The state may do thatwhen it provides an adequate alternative method of distribution.

To the deeper point about resources, equality and rights: I am not sure we all are committed to equality of communicative opportunity.   We are committed to freedom of expression (to use Solum’s terms).  And so, the relevant question is how we should understand the relationship of this right to the freedom to spend money as one wants – which we don’t recognize as particularly strong.  Just because the exercise of many rights, speech among them, is facilitated by money doesn’t entail that our constitutional free speech right (which includes freedom of expression) should cover the right to spend money on speech in all instances.  Sometimes it may not.  Moreover, the decision to remove a good from market-based distribution may be motivated by a commitment to equality of communicative opportunity or it could rest on something else like equality of political participation, avoiding the commodification of the political process.


Money Talks Symposium: Equality of Communicative Opportunity

In my earlier post, I suggested that Deborah Hellman is right to focus on the relationship between rights and resources.  “Money is not speech,” but money can buy resources that are necessary to enable speech.  In this post, I would like to address another deep question raised by Hellman.

To raise this question, I want to distinguish between “freedom of speech” as legal doctrine and what I will call “freedom of expression,” referring now to a principle of political morality which may (or may not) match the existing positive law.

The ability to exercise a right can require resources, but resources may be scarce, both in the economist’s sense that they have a price and in the more informal sense that there may be a limited amount of a given resource.  I believe that we have two intuitions about the freedom of expression.  The first intuition is that realizing the freedom of expression is inconsistent with limits on the amount of expression.  If we are engaged in a discussion, and I have another point to make, the freedom of expression requires that I be allowed to make.  The second intuition is that realizing the freedom of expression requires equality of communicative opportunity.  If we are engaged in a discussion, and you are allowed to make a point, then I must be allowed an equal opportunity to respond.  That means that it is inconsistent with the freedom of expression to have a set of legal rules that give some speakers more communicative opportunities and other speakers fewer such opportunities.

What happens when we combine these two intuitions (“unlimited speech” and “equality of communicative opportunity”) with the facts that speech requires resources and that resources are scarce.  In the words of Johnny Mercer, “something’s gotta give, somethings gotta give, something’s gotta give.”

Given scarce resources, unlimited speech for some can interfere with equality of communicative opportunity.  And this tension is particularly noticeable in the context of political speech.  Reaching a mass audience is a resource intensive enterprise.

Deborah Hellman’s position is that “adequacy” is the key, so she formulates the principle that restrictions on speech are permissible only if government provides “an adequate alternative method of distribution.”  Perhaps, but I am not sure that our understanding of freedom of expression as a principle of political morality is captured by the notion of “adequacy.”  Suppose that I have been given an “adequate” opportunity to speak, but there is more that I want to say.  I have additional points to make & additional audiences to reach.  Does the limitation to adequate speech cohere with our intuition that the freedom of expression is violated by limits on the amount of expression? And suppose that I am given an “adequate” opportunity to speak, but someone else is given a greater opportunity?  Isn’t equality of communicative opportunity required, irrespective of the “adequacy” of the opportunity I am provided?

In the context of campaign finance regulation, unlimited speech and equality of communicative opportunity are on a collision course–especially in the context of an economic system that permits pervasive inequalities in the distribution of resources.  A given legal regime can favor either unlimited speech or equality of communicative opportunity, but no regime can simultaneously achieve both.  I think this is the reason that Mike Seidman emphasizes that for him, Hellman’s “article raises very deep questions about whether a regime of civil liberties is really possible without significant reallocation of economic resources.”

I agree with Seidman–these are deep questions, and I am skeptical about the possibility that the notion of “adequacy” can provide a deep and deeply satisfying answer.


Money Talks Symposium: One more thought

I forgot to add one point to my last post – probably because I hate to take issue with Professor Chemerinsky in his valiant defense of my view.  Nonetheless, I would like to point out a divergence between my view and the one he articulates in his post.  He says that recognizing that spending money merely facilitates speech, “it should be appropriate to restrict spending to ensure that more speech really happens.”  This is a much stronger claim than the view I propose and one I am not sure I agree with.  Congress could decide that the means to participate in elections should be distributed on a non-market basis because this is a good that calls for a different distributive principle than ability to pay.  Whether this decision would yield more or less speech, I cannot predict.  Nor do I think that is the gravamen for whether this decision is constitutional.  Rather, I think that the congressional decision affects property, with implications for the exercise of speech, and is permissible so long as Congress provides an alternative distributive mechanism and employs distributive criteria that no not violate other constitutional rights.


Money Talks Symposium: Marketplace of Ideas, Metaphor or Reality?

First let me say how very honored I am that Concurring Opinions is hosting this symposium on my piece, Money Talks But It Isn’t Speech.  I especially appreciate the comments both those challenging my view and those defending it.

I see the questions posed by Lawrence Solum and Mike Seidman as driving at a similar point.  Solum, in particular, begins by agreeing that money provides the means to exercise many rights.  He emphasizes too that money is not the only means, there are other resources one brings to bear in the exercise of rights.  Where a law restricts the use of these means, he argues that it restricts rights or at least makes a prima facie case to be restricting rights.  The examples he offers would allow legislatures to do an end run around rights by simply restricting the means to exercise those rights.  Clearly this isn’t a tenable result.  In the paper, I emphasize both that democratic decision-makers must be free to decide whether goods are to be distributed via the market or instead via other methods and that we must insure that this permission doesn’t allow the legislatures to curtail rights as Solum’s examples suggest.  Here’s how we can do both:  democratic decision makers may decide to distribute a good via a non-market means but in order to do so must provide an alternative method of distribution.  Think of votes and organs here.  Votes are distributed on the basis of age and citizenship, organs on some account of medical need.  Solum’s hypotheticals do not present cases where legislatures have provided an alternative distributive mechanism at all.  Unless the state does so, it has violated the underlying right by curtailing the means to exercise the right.

This brings me to Zephyr Teachout’s thoughtful defense of my view.  She suggests that Congress (or a state legislature) removes a good from the market when it makes it “freely available to all.”  While Congress has provided an alternative distributive mechanism where it makes the good “freely available to all,” I find I cannot adopt this interpretation of my view as I think it is too demanding.  Organs are not freely available to all, nor are votes, babies, sex, etc.   Rather, I think Congress or the state legislature must provide an adequate alternative method of distribution.  The two words to stress here are “adequate” and “distribution.”  Solum’s examples fail this test because they are simply not methods of distribution at all.  I include “adequate” to address the challenge of a case like Mike Seidman’s example of a government that eliminates the market in books and distributes the limited supply on a non-market basis.  Most likely the loss of a market in books would dramatically affect the supply.  If it does so in a way that leads to dramatically fewer books, then the alternative distribution method may not be adequate.  I realize, of course, that determining adequacy will not be easy and can only say now that I am leaving this issue for another day.  This example points out the way that money incentivizes the exercise of rights as well as facilitates it.

Seidman’s  other example raises a slightly different point.  He worries about the criteria that the government might use in distributing abortions (if they were distributed via non-market means).  Here, I inclined in part to agree with Teachout.  Abortions themselves are not scarce, so there is no reason an adequate alternative distributive mechanism wouldn’t provide them to all who present themselves. But the deeper point is that for truly scarce goods – medical resources more generally, for example – a non-market method authorizes the government to decide the criteria of distribution.  Here I think I am going to bite the bullet.  Market based distributions distribute goods based on ability to pay.  Often these distributions are dramatically unjust.  An alternative distributive method of a scare resource will inevitably use a distributive method that will leave someone out.  So long as that scheme doesn’t infringe another constitutional right – Equal Protection most notably – then it is permissible.


Money Talks Symposium: Rights and Resources

Deborah Hellman’s marvelous essay aims to establish that “Money is not speech,” and who could disagree with that?  But I am not sure that anything follows from that conclusion for free speech doctrine.  Like Hellman, I think that the key to understanding this issue is to back away from the particular controversy–money in elections–and consider the general relationship between rights and resources.

Consider a series of hypotheticals in which government regulates resources in ways that impact on the ability of right holders to exercise their rights:

Hypothetical 1: Abortion and Medical Resources. Imagine that the state makes a law the prohibits the use of particular medical resources to perform abortions.  Doctors are not allowed to use medical instruments to perform abortions.  It is true that “medical instruments” are not the right to choose whether to give birth.  But does this fact establish that the constitutional right of choice would not be violated by this resource regulation?

Hypothetical 2: Assembly and Transportation Resources. Imagine that a group of protestors want to hold a demonstration outside a nuclear testing facility in Nevada.  The government enacts a law that forbids the use of transportation facilities (buses, taxis, and private vehicles) for the purpose of attending the demonstration.  It is true that “buses” are not “assembly”.  But does that fact establish that the constitutional right of assembly would not be violated by this resource regulation.

Hypothetical 3: Blogging and Computing Devices. Imagine that I want to blog about legal theory.  The government enacts a statute that forbids the use of computing resources (PC’s, laptops, iPhones, etc.) for this purpose.  It is true that “laptops” are not “speech.  But does that fact establish that the constitutonal right of free speech would not be violated by this resource regulation.

Each of these three hypotheticals can be altered to bring “money” into the picture.  What if the government prohibited the expenditure of funds to purchase medical instruments use to perform abortions?  What if the government prohibited the expenditure of funds to rent a bus to get to the demonstration?  What if the government prohibited the purchase of laptops for the purpose of blogging?  In each case, money is the means by which resources are obtained.  Of course, it is true that “money is not speech,” but does it follow that regulations of money cannot violate the freedom of speech for that reason?