“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.