The Ethics of Money as Speech

The 2024 American presidential election is on pace to be the most expensive ever. Harris has a decisive advantage on the fundraising front, but both candidates are bringing in hundreds of millions. Other contentious elections, like the Pennsylvania senate election, are similarly awash in money. A new class of political actor has emerged, the mega-donor, who may spend millions supporting a preferred candidate. Though few in number, they count for a vastly outsized proportion of political spending — in 2018 just 10 people accounted for 7% of spending. Corporations are also in on the frenzy, with crypto companies especially emerging as leading donors in the 2024 election.

Fundraising is not destiny and monetary advantage may not translate into electoral victory, but the issue with political fundraising runs deeper than the mere fear of bought elections. It’s becoming impossible to run for political office without a massive war chest, and the political favors that can be purchased by mega-donors threaten to undermine political equality. Nonetheless, the Supreme Court has struck down one campaign finance law after another, arguing that the protection of free speech outweighs concerns about the influence of money in politics. How did we get here?

The most famous precipitating cause is Citizens United v. Federal Election Commission (2010). This controversial 5-4 Supreme Court decision allows for unlimited independent expenditures by non-profits, unions, and, most impactfully, corporations. What counts as an independent expenditure? An independent expenditure would be if I spent one hundred dollars on a YouTube ad for a preferred candidate, but did not coordinate directly with the campaign. This contrasts with individual contributions, where I would just give that 100 dollars directly to the campaign.

Citizens United raises a whole raft of questions about why abstract legal entities, like corporations, deserve separate free speech rights. However, the treatment of political spending as a free speech issue stems primarily from the notoriously complex 1976 Supreme Court decision, Buckley v. Valeo. The case had two central holdings. First, it held that restrictions on individual contributions are legitimate, maintaining election integrity and preventing corruption or even the mere appearance. Second, Buckley v. Valeo held that limits on independent expenditures violate freedom of speech.

While the Supreme Court did not claim that money is literally speech, they did suggest that money plays an important role in modern political communication. Ultimately, the government’s interest in protecting political spending follows a broader interest in facilitating the ability to meaningfully express oneself publicly. Still, it does not automatically follow that political spending should be unlimited. In fact, the permissiveness of unlimited independent expenditures is a notable contrast from other more restrictive speech rulings.

Generally, rights are restricted to balance them against competing rights or interests. If there are no competing interests, then making the right unlimited could make sense. Individual contributions to campaigns are restricted because of competing worries about political corruption. By contrast, the Court assumed in both Buckley v. Valeo and Citizens United that because independent expenditures are supposed to be, well, independent, corruption should not be at issue. In retrospect, this is incorrect. Especially after Citizens United, coordination is common, bribery is facilitated, and, as previously discussed in the Prindle Post, the public is definitely worried about corruption.

Clearly, there are competing interests to unlimited independent expenditures. But advocates might nonetheless argue that unlimited spending benefits outweigh the risks of corruption. One potential defense of unlimited spending, present in both Buckley and Citizens United, is that more speech is simply better for democracy. Although, what needs to be defended is that more political spending is better for democracy, for while money facilitates speech, it is not itself speech. By the same token, we could agree that more speech is better for democracy, but dispute that more television (a facilitator of expression) is therefore always better.

But is more speech better for democracy? Justice Kennedy, writing for the majority in Citizens United, argued: “The right of citizens to inquire, to hear, to speak, and to use information to reach consensus is a precondition to enlightened self-government and a necessary means to protect it.” This reflects a classic “marketplace of ideas” approach which holds that the best ideas will prevail in a free exchange of information.  As previously discussed in the Prindle Post, the marketplace of ideas is more a nifty ideal than an actual description of public discourse. Regardless, the ideal runs on the diversity of ideas, not the sheer volume of speech. By allowing wealthy actors with more money to take up disproportionate space in the marketplace, less moneyed voices are washed out and the marketplace suffers.

In Buckley, the Court asserted that the government “may restrict the speech of some elements of our society in order to enhance the relative voice of others is wholly foreign to the First Amendment.” Or, more accurately, “that government may restrict the [political spending] of some elements of our society in order to enhance the relative [spending] of others is wholly foreign to the First Amendment.” However, if money is to be treated as tantamount to speech, then the Court must care about one’s actual ability to express themselves and not merely the formal right. And if they do care about the actual ability, then it makes sense to regulate political spending to protect diversity in the marketplace of ideas.

Alternatively, one could contend that the capacity to express ourselves is fundamental to a life well lived. In such a case, making speech as free, as uninhibited, and as effectively enabled as possible could be considered a general good. Still, the number of legal restrictions should not be conflated with the practical freedom of speech. Consider an extreme example: say, a threat to kill someone if they publish an op-ed about dangerous chemicals in the local water supply. Strictly speaking, if threats are protected by the First Amendment, then more kinds of speech are allowed, and speech is more “free,” legally speaking. But practically speaking, it becomes more restricted – the ability to issue these threats publicly discourages others from speaking. In short, even if one’s goal is simply to make speech more uninhibited, regulations and restrictions may still be sensible.

The Supreme Court was perhaps too quick to blur together money as enabling speech, and money as speech. Substituting “political spending” for “speech” in some of the loftier rhetoric can help one to stay clear-sighted on the distinction. Moreover, there may be grounds to regulate it regardless. As Benjamin Rossi pointed out in the Post previously, no free speech regime is without costs, and the on-balance effect should be seriously considered. Corruption — even with independent expenditures — appears to be a central cost of unlimited political spending. Perhaps most compelling, if the concern is free speech represents a meaningful capacity to express oneself and participate in the marketplace of ideas, then this seems to tell in favor of spending limits.