Hellman on Money & Speech (with some comments)

Deborah Hellman (University of Maryland - School of Law) has posted Money Talks But it Isn't Speech (Minnesota Law Review, Vol. 95, No. 3, 2011) on SSRN. Here is the abstract:

This Article challenges the central premise of our campaign finance law, namely that restrictions on giving and spending money constitute restrictions on speech and thus can only be justified by compelling governmental interests. This claim has become so embedded in constitutional doctrine that in the most recent Supreme Court case in this area, Citizens United v. FEC, the majority asserts it without discussion or argument. This claim is often defended on the grounds that money is important or necessary for speech. While money surely facilitates speech, money also facilitates the exercise of many other constitutional rights. By looking at these other rights, this Article notes that sometimes constitutional rights generate a penumbral right to spend money and sometimes they do not. Thus the fact that money facilitates the exercise of a right is insufficient to show that the right includes a penumbral right to give or spend money. The first contribution this Article makes is to identify this question: when do constitutional rights generate a penumbral right to spend money? The second contribution this Article makes is to provide an answer. When a right depends on a market good for its exercise, the right generates a penumbral right to give or spend money. When a right does not depend on a market good for its exercise, the right does not include a penumbral right to spend money. Using this account, this Article argues that the right to give and spend money in connection with elections need not be protected as speech under the First Amendment.

Highly recommended!  I do have a question about the argument.  Hellman's strategy is to develop a general account of the relationship between money (or more generally "resources") and various constitutional rights.  One of her central examples is voting.  She makes the argument in the following passage:

Should the right to vote be understood to include the right to spend money in connection with voting? Our Constitution protects voting as a fundamental right via several constitutional provisions including the Fourteenth Amendment’s Equal Protection Clause, the Fifteenth Amendment (no denials based on race), the Nineteenth Amendment (no denials based on sex), the Twenty-Fourth Amendment (prohibiting poll taxes in federal elections),and the Twenty-Sixth Amendment (no denials to citizens 18 and over). Nonetheless, federal law prohibits people from buying or selling votes.83 In other words, the right to vote does not include the right to spend money to induce others to vote as one prefers. And rightly so. In fact, it seems odd to suggest that the right to vote should include the right to buy someone else’s vote. But why not? The reason this suggestion is odd is that the various laws and constitutional provisions just mentioned make the vote something distributed via non-market mechanisms and thus the right to give or spend money in connection with voting seems to conflict with how we understand what the vote is.84 It is not simply the “one-person, one-vote” idea affirmed in Reynolds v. Sims85 that is relevant here. After all, each person could have one vote and yet be freely able to trade that vote for money or anything else that she values. Rather, what we see instantiated in the laws that forbid the buying and selling of votes is the view that the sphere of voting should be separated and protected from the sphere of money. This wall of separation between voting and money is at the heart of the Twenty-Fourth Amendment’s rejection of poll taxes in federal elections and state elections in Harper v. Virginia State Board of Elections86 and property ownership in Kramer v. Union Free School District.87

Nor can one pay money to another person simply to vote, as contrasted with paying someone money to vote a particular way or for a particular candidate. Federal law prohibits paying a person “either to vote or withhold his vote.”88 Voter turnout is often lamentably low.89 Paying voters to come to the polls would likely increase voter participation, yet one cannot pay voters to vote.

I wonder what Hellman would say about the following hypothetical:

Hypo 1: The state legislature enacts a statute the forbids the expenditure of money or the use of resources bought with money for the purpose of transportation to a polling place.

This hypothetical statute (it would seem to me) is clearly a restricting on the right to vote.  It does not directly restrict voting, but it restricts the use of resources in a way that effectively denies the right to vote for persons who cannot vote without using resources.

Now consider a free-speech hypo:

Hypo 2: The state legislature enacts a statute that forbids the expenditure of money or the use of resources bought with money for purpose of speaking or publishing material that is critical of an incumbent candidate.

This would clearly seem to be a restriction on the freedom of speech and of the press.  It does not directly restrict speaking or publishing, but it restricts the use of resources in a way that effectively denies the right to criticize candidates (by speech or publication) for persons who cannot engage in this activity without the use of resources.  Moreover, it limits the ability of all critics to reach audiences with whom they do not have face-to-face interactions.

Finally consider the following hypo:

Hypo 3: The state legislature enacts a statute that forbids the expenditure of money or the use of resources bought with money for purpose of speaking or publishing material that that advocates voting for or against a candidate for office.

I take it that this statute would also violate the freedoms of speech and press, for similar reasons.  Now it may be that a narrower statute would survive--on any of a variety of rationals, but the broad statute in Hypo 3 is almost surely unconstitutional.

So I wonder whether Hellman's general theory is correct.  Here is an excerpt that expresses the gist of her view:

The previous section established that while spending money facilitates expression, incentivizes expression and can itself be expressive, these facts alone are insufficient to establish that restrictions on giving and spending money are restrictions on speech. Rather, only the expressive dimension of giving and spending money is uniquely related to the First Amendment. Moreover, while giving and spending money is expressive, it is usually not expressive enough to warrant First Amendment protection. Spending money also both facilitates speech and provides incentives to speak. However, as surveyed briefly above, spending money also facilitates and incentivizes the exercise of other constitutionally protected rights as well as the fulfillment of countless interests. This is because money is a general purpose good, useful in the attainment of many other goods and the exercise of many rights. Sometimes the right to give and spend money in connection with the exercise of a right is protected as part of the right itself and sometime it is not. This observation leads to two conclusions. First, merely noting that spending money facilitates the exercise of a right is not enough to establish that spending money in connection with the right should be understood as falling within the ambit of the right itself. Second, that being so, we need a theory to explain and justify when we ought to protect money-spending in connection with a right as part of right and when not.

Hypos 2 & 3 suggest that "facilitation" (or something similar) may indeed be sufficient to trigger a right.  In each of the three hypos, money or resources are the means by which actions within the scope of a right are accomplished.  Restricting the means restricts the action within the scope of the right.

In any event, I learned much from Hellman's thought provoking essay.  Download it while its hot!