- What Money Can and Cannot Buy
At the risk of belaboring a point, I want to revisit the claim that underlies Buckley v. Valeo1 and which was not challenged in the more recent campaign finance case McConnell v. Federal Election Com'n2 that the ability to spend money to express one's views is an interest protected by the First Amendment guarantee of freedom of speech.3 The critique of this assumption — that money is not speech4 — has been rejected on the grounds that money clearly facilitates speech. Indeed, in many contexts it takes money to speak (via a newspaper or TV advertisement for example) and thus to say that one cannot spend one's money to speak is tantamount to forbidding speech itself.5 Below, I will re-examine the rejection of the claim that because money is not speech it does not deserve First Amendment protection. Instead I will suggest that there are good reasons not to view spending money to speak as an activity protected by the First Amendment in the first instance.
Eugene Volokh's view provides a good example of the sort of ridicule to which the argument that money is not speech, and therefore not deserving of First Amendment protection, is generally subjected. As he explains:
money isn't lawyering, but the Sixth Amendment secures criminal defendants' right to hire a lawyer. Money isn't contraception or abortions, but people have a right to buy condoms or pay doctors to perform abortions. Money isn't education, but people have a right to send their children to private schools. Money isn't speech, but people have a right to spend money to publish The New York Times. Money isn't religion (at least not for most of us), but people have a right to donate money to their church.6
While initially appealing, this argument against the claim that money is not speech is too facile. Volokh rightly acknowledges that "of course money isn't speech" and that therefore the relevant question "is not whether the money is speech, but whether the First Amendment protects your right to speak using your money"7 but fails to see how much this admission unravels his quick disposal of the challenge presented.
Volokh's string of examples, which together he takes to present a form of argument ad absurdum for the claim that because money is not speech it doesn't merit First Amendment protection, commits a familiar fallacy. There is clearly a continuum of acts between merely spending money and clearly speaking which can be described as more and more speech-like. But the fact that such a continuum exists and that thus some forms of spending money may count as speech (publishing a newspaper, for example) does not entail that all forms of money-spending in connection with speech are "speech." The existence of such a continuum does not mean that we cannot adopt some point on this continuum as too far from paradigmatic speech to be protected as speech at all by the First Amendment.
As Fred Schauer explains in his recent book on an unrelated subject, the fact that any dividing line on a continuum between two related but different things is often arbitrary in no way undermines the strength of the distinction between the two things.8 Quoting an Edmund Burke example, Schauer reminds us that "though no man can draw a stroke between the confines of night and day, still light and darkness are on the whole tolerably distinguishable."9 Similarly, though the ability to spend money to express one's views clearly relates to the ability to speak, and surely to speak effectively and to be heard, this does not by itself determine that the spending of money on speech is closely enough connected to the speech end of the continuum to merit First Amendment protection. Like day and night are tolerably distinguishable, so too are speaking and spending money. While there may be important reasons to protect the spending of money as an exercise of First Amendment rights in some instances, as indeed there is a reason to protect the spending of money to...