Unfettered Money

When the Supreme Court ruled that money equals speech 35 years ago, it was responding to forces of technology and economics reshaping American politics that made it much more expensive to run a campaign. While ruling that public financing and limits on contributions are valid ways to limit donors’ undue influence, it struck down candidate, campaign and independent spending limits.

Now the court’s conservative majority is again reshaping politics, ruling that what matters most for money and speech is their “fair market” impact. The result will be closer scrutiny of public financing, while enabling even more rampant spending by wealthy candidates.

In the landmark 1976 case of Buckley v. Valeo, the court said that “virtually every means of communicating ideas in today’s mass society requires the expenditure of money,” so restricting campaign spending meant restricting political speech. The First Amendment required that political speech be unfettered, so the same was required for political spending.

But when the court ruled that money equals speech, it didn’t mean, literally, that money is speech. It meant that money enabled speech. A political contribution enabled the symbolic, or indirect, speech of the donor and the actual speech of the candidate — and may the best speech win. The focus was on enabling the speech, not the money.

That changed in 2008 when the conservative majority struck down a federal rule that had tripled the limit on campaign contributions for a candidate outspent by a rich, self-financed opponent. Justice Samuel Alito Jr. wrote that the rule diminished “the effectiveness” of the rich candidate’s spending and of his speech.

In oral argument recently, the court’s conservatives appeared ready to take their next step in restricting campaign finance reform and to strike down Arizona’s public financing mechanism called triggered matching funds. This is one of the most compelling innovations in the country. The state will match for a state-financed candidate what an opponent raises in private contributions up to triple the initial amount of state financing.

To William Maurer, the lawyer opposing the Arizona mechanism, whenever “a privately financed candidate speaks above a certain amount, the government creates real penalties for them to have engaged in unfettered political expression.” That “speaks” was not a slip, but a reinforcement of the money-equals-speech notion.

The fundamental problem, he said, is “the government turning my speech into the vehicle by which my entire political message is undercut,” because the public funds triggered are a penalty that reduces the impact of the privately financed candidate’s spending and speech. Chief Justice John Roberts Jr. made clear in the argument that he, too, sees triggered matching public funds as a limit on the privately financed candidate’s speech.

That makes no sense. Arizona’s mechanism means more candidates — not just the wealthy — will be able to run in elections. And that means more political speech, not less. But that view depends on seeing money as enabling speech, not vice versa. Money already has far too much sway everywhere in politics. If the court continues this way, the damage and corruption will be enormous.