“Money Is Not Speech.” Really?

“Money Is Not Speech.” At first, this phrase sounds so self-evident as to be almost indisputable. This phrase is currently riding a wave of popularity among the political classes, such that former U.S. Supreme Court Justice John Paul Stevens was greeted with praise for uttering this phrase during a hearing before the U.S. Senate Rules Committee on April 30, 2014. Almost no one criticized Stevens’ remarks, as such thoughts are now a mantra for a growing movement to gut First Amendment protections.

The retired justice was echoing now popularized criticisms of Citizens United v. F.E.C. and McCutcheon v. F.E.C., a pair of Supreme Court decisions that found certain campaign-finance laws infringe on freedom of the press. These decisions were baby steps in the right direction but did not go far enough. The entirety of current campaign-spending laws impose such a burden of labyrinthine rules and regulations that almost no one can run for political office without first seeking legal counsel. The Founding Fathers who ratified the First Amendment in 1791 would be shocked to discover that politicians today must disclose everything from their investment accounts to the occupations of their donors.

Yet shockingly, there are now dozens of sitting members of Congress who have sponsored proposals to amend the Constitution to overturn Citizens United and McCutcheon. In fact, some of these proposed amendments go much further. For instance, one proposal would declare that the protections of the Bill of Rights do not pertain to corporations, and another proposal would declare that “The judiciary shall not construe the spending of money to influence elections to be speech under the First Amendment.”

Former Justice Stevens offered an extreme example to illustrate a circumstance where campaign money “is not speech”: “After all,” Stevens told senators, “campaign funds were used to finance the Watergate burglaries –actions that clearly were not protected by the First Amendment.”

Stevens needed such an extreme example because almost every other example of how America’s campaign finance laws are enforced illustrates the chilling effect of the “political police” on the dissemination of ideas. In Citizens United, the U.S. government argued that under campaign spending laws it could ban entire books or videos if even a single sentence in them advocates the election of a politician.

Campaign officials in Mississippi attempted to require that someone who merely buys a quarter-page ad in a local newspaper to promote a local ballot initiative must register as a “political committee.” An Arizona woman seeking to organize a protest against a local bond levy received a warning letter from a town clerk stating that she must stop exercising her First Amendment rights until she registered with the government as a political committee. “I was stunned to learn that I needed to register with the government just to talk to people in my community about a political issue,” she said. And an Ohio man who started a political blog and handed out leaflets at a county fair was accused of violating campaign finance laws for spending $40 dollars on his website before registering with the government as a political action committee.

Now we have word that current members of the Federal Election Commission (FEC) are seeking to extend their reach even to political websites that seem to support political causes or candidates. FEC members specifically referenced The Drudge Report and the Sean Hannity radio program.

The First Amendment states, in part, that “Congress shall make no law… abridging …the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” Thus, the Amendment plainly envisioned the “petitioning of government” by means that included peaceful assembly, which is group action. Yet many loud voices are calling for a reading of the First Amendment that would forbid all but individuals from operating a website, a newspaper, or a TV station.

Such a stripping of First Amendment protections from corporations would essentially gut the First Amendment. Most of America’s family farms, print shops, newspapers, TV stations, and radio stations are corporations. Most of America’s churches, temples, and synagogues are corporations. Most of America’s major advocacy groups, including the American Civil Liberties Union, the National Association for the Advancement of Colored People, the Urban League, the American Cancer Society, the Sierra Club, and the National Rifle Association are corporations. If these corporations were deprived of their right to print, broadcast, and publish political statements, then the super-rich would enjoy something of a monopoly on large-scale political advocacy.

Many important First Amendment cases have been won by corporations, including the New York Times v. Sullivan, Hustler Magazine v. Falwell, andNew York Times Co. v. United States. This last case established the right to publish the Pentagon Papers, which exposed government corruption during the Vietnam War. Any constitutional amendment overturning Citizens United could by implication also overturn these decisions.

It is often forgotten that the corporate form is a business model for the “little guy” and a device that allows small investors who could never afford to own a business to pool resources with others and compete in capital-intensive industries. Corporations have existed since at least 800 B.C. on the Indian subcontinent and in ancient Rome, Medieval Europe, and ancient Norway. Many Americans are unaware that America was founded by for-profit corporations. The 1607 English settlement at Jamestown was an operation of the Virginia Company, a joint-stock company. The Massachusetts Bay, Rhode Island, and Plymouth colonies were all profit-seeking corporations. New York was founded by a loose cooperative of Dutch merchants for the sole reason of seeking profit.

Money is not speech? Consider that most major political magazines have generally been money losers and have been subsidized by wealthy benefactors seeking to influence American politics. For example, The Weekly Standard, founded by neoconservative billionaire Rupert Murdoch and sold in 2009 to neoconservative billionaire Philip Anschutz, has never once reported a profit. The National Review, founded in 1955 by William F. Buckley, Jr., has been profitable in only 1994. The Nation, founded as a corporation by 40 abolitionists in 1865 and subsidized heavily for many years by railroad baron Henry Villard, turned its first profit in 2003. The New Republic was supported throughout most of its history by untold millions of dollars from investment banker Willard Straight and his heiress wife Dorothy Payne Whitney. Harper’s Magazine has notoriously lost millions of dollars for its various owners. Reason is partially maintained by a nonprofit foundation heavily supported by the David H. Koch Charitable Foundation and the Sarah Scaife Foundation.

The unprofitability of these political magazines demonstrates that they are, essentially, political and ideological advertising, supported partially by their providers rather than solely by their readers. The same can be said for much of the political content on the Worldwide Web and elsewhere. Remember “Air America” radio? By some accounts, this liberal radio network was a sink for millions of dollars from liberal investors such as Evan Cohen and the New York real estate investing Green family before the network finally declared bankruptcy in 2010.

The movement to declare that “money is not speech” and that political content can therefore be regulated under campaign finance laws is almost certainly the most dangerous threat to the First Amendment in America’s constitutional history. It is more dangerous than the McCarthy and Red Scare episodes, the flag-burning-criminalization amendments proposed since the 1980s by the American Legion, and the Alien and Sedition Acts of the John Adams Administration.

Dr. Roger Roots About Dr. Roger Roots

Dr. Roger Roots is an Assistant Professor of Social Science at Jarvis Christian College in Hawkins, Texas. He blogs for some of America’s premier libertarian websites, including Lewrockwell.com and Nolanchart.com.

3 comments
Aaron
Aaron

You're conflating public advocacy with private bribery, and making no distinction between the two.  In the spectrum, I'm not at all sure where you stand, but in the present erosion of limitations, you clearly think that there are still too many rules ("baby steps in the right direction but ... not ... far enough").  Obviously (can I say that?) we don't want to live in a country where all government action can be purchased by the highest bidder, where every politician has his hand out for money to stuff his own pockets, society be damned.  That's feudalism.  Even if it's a more nuanced viewpoint than you're managing to put across, it's still like saying, after a tree blows down in your neighborhood in a storm, that obviously all the trees are hazards and all must be cut down.  Hyperbolic overreaction does not, to my mind, scream of a very objective analysis of an issue, whatever that issue is.

IamIthinkFree
IamIthinkFree

We exist in two states of citizenship - the first, our natural sovereign state; the other, the civil state. We are protected by the Constitution in the first instance. Not at all in the second. We can tell the government to go to hell in the first. They demand our allegiance in the second. And, they are within their right to demand it, as difficult as it may be to grasp, because we contract with them when we sign up for driver licenses and marriage certificates and all the various services they offer in exchange for our rights. The basis for this deception is our voluntary choice of "residence." Through word-art the government gives us forms that offer choices of Domicile/Residence *only* within the corporate U.S.. This is how they export our legal/civil state into the corporate environment over which they are accepting our Rights in exchange for their privileges. Have you ever filled out a license application or tax for with the option "Republic of Texas?" Or "California Republic, US Republic?" These agreements are called adhesion contracts and they are ever more prevalent. Every one we sign adds to our enslavement. Keep in mind this is somewhat legal if you overlook the requirement for informed consent and others. So we they are not taking anything away. We are giving our freedoms away through contracts with the government. We have unlimited capacity to contract in the first state. The federal State and its franchises cannot reduce this right. However, we can give up rights for privileges if we contract to do so with free will. The problem is that the corporate government (distinct from the Constitutional Republic) never tells us "When you sign up for this license to drive you are giving up your Right to travel." So, we have limited privileges in the second, we always give up rights in the second, and we just assume we are doing the right thing by following the law and obtaining a license. The Bill of Rights does not apply to corporations and never will. Corporations are fictions and have no rights. They are privileged, licensed entities. They do apply to the Sovereign People, but only those who know who they are. Learning who you are, and learning the law is not easy. There is no official source offered by the government, and even attorneys come out of law school having learned almost strictly statutory law (not Civil law). The road is long. My journey started over 5 years ago and I might consider myself a freshman. We should all take heed to "Ignorance is no excuse, " and learn the law. It's the only way to know who you/we are. It's the only way to have Liberty, which is taking on the responsibility for ones own freedom.

Craig Walenta
Craig Walenta

The New York Times is an excellent example because to put out its publication, the newspaper spends hundreds of millions of dollars on salaries, ink, newspaper, distribution, etc. Unless the First Amendment is a protection to babble coherently, unheard except to those who happen to pass by, even the use of my computer to post this message implicates ‘money’ – indeed money is just a veil for mutual exchange. Unless one has the wherewithal to independently produce the products necessary to engage in speech, one will be theoretically precluded from engaging in speech since all speakers ultimately use funds amassed in the marketplace to fund their speech.