Justices Should Know by Now -- Money Is Not Speech

Whenever I admit to fellow guests at a dinner party that I work as a campaign finance lawyer, the following happens....

June 10, 2008

Cross-posted from a Seattle Post-Intelligencer piece.

Whenever I admit to fellow guests at a dinner party that I work as a campaign finance lawyer, the following happens. Either their eyes glaze over, hoping for a rapid change of topic, or they launch into a heated discussion of why the case that decided "money is speech" is so wrongheaded—since after all, money is, well, money, and speech is something else entirely. Sad to say, the justices on the U.S. Supreme Court seem to be losing their grasp on this simple point.

Contrary to popular opinion, the landmark case, Buckley v. Valeo, never actually equated money with speech. Instead, the opinion analyzed political campaigns and concluded that lots of money is needed to get a candidate's message to voters. Buckley used gasoline as a metaphor for campaign cash. The fuel of contributions makes the campaign car go.

As Justice Stephen Breyer once wrote, "a decision to contribute money to a campaign is a matter of First Amendment concern not because money is speech (it is not); but because it enables speech." Despite this truth, the bumper sticker version—"money is speech"—has seeped into our collective unconscious. 

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