Dorf on Whelan and Volokh on Justice Stevens on the "Money is not Speech" Argument

By Michael Dorf

In testimony before the Senate Rules and Administration Committee last week, retired Supreme Court Justice John Paul Stevens read a brief statement in favor of campaign finance regulation and somewhat critical of the Court's case law in this area. Here I want to offer a few thoughts in reaction to one point he made and in reaction to one line of criticism of that point. The point at issue was his fourth of five points, which I'll quote here in its entirety:

Fourth, while money is used to finance speech, money is not speech. Speech is only one of the activities that are financed by campaign contributions and expenditures. Those financial activities should not receive the same constitutional protection as speech itself. After all, campaign funds were used to finance the Watergate burglaries – actions that clearly were not protected by the First Amendment.

Writing in the National Review, Ed Whelan criticizes this point as a non sequitur. Whelan links to a nicely produced and entertaining short video that Eugene Volokh put together for the Federalist Society, ostensibly to offer an alternative viewpoint. Yet Prof. Volokh's video does not in fact offer an alternative viewpoint. At least on its face, it is completely consistent with what Justice Stevens told the Senate.

Volokh acknowledges that money isn't speech, but he says that laws that restrict the use of money in order to speak infringe speech--in the same way that laws that restrict the use of money in order to exercise other rights (such as the right to counsel) infringe those other rights. Thus, a limit on how much money can be used to fund speech should be treated as an infringement on speech. So far so good.

But now consider one of Volokh's examples. A law that forbids taking an airplane to give a political speech would violate the First Amendment, he says, even though air travel isn't speech. That's quite right, but a law that restricted air travel--by taxing it, say, or by banning certain forms of air travel on grounds of safety--would not violate the First Amendment even though some people who travel by air do so in order to speak. The crucial difference between Volokh's example and mine is that in his, the law targets an activity on the ground of its facilitation of speech, whereas in mine the law targets an activity that is not inherently expressive.

And that's just the point that Justice Stevens is making: Just as some air travel facilitates speech while some air travel does not, so too some campaign contributions go to finance expressive activities (like the purchase of airtime for political advertising) while some campaign contributions go to finance nonexpressive activities (like paying rent for office space for a candidate or financing a break-in of the Watergate hotel).

Note that Justice Stevens does not say that campaign contributions should not receive any constitutional protection. He says that they should not receive the same constitutional protection as speech itself. Read in the context of the Court's doctrne, I understand that to be an argument for the so-called O'Brien test applicable to content-neutral regulations of conduct with an expressive element, which is roughly intermediate scrutiny.

Notably, in the video Prof. Volokh quotes Justice Breyer for the proposition that "the First Amendment is involved" in campaign finance cases "not because money is speech (it is not) but because it enables speech." So on the fundamental question, there appears to be no real disagreement between Volokh and Breyer, or between Breyer and Stevens, and thus between Whelan (invoking Volokh) and Stevens.

But how can that be? Volokh and Whelan approve of the Supreme Court's restrictive view of permissible campaign finance regulation, whereas Breyer wrote the chief dissent in McCutcheon v. FEC and joined the dissent of Justice Stevens in Citizens United v. FEC.  The answer, I think, is that whereas everybody agrees that: (1) money isn't speech; and (2) money can facilitate speech, they disagree over whether campaign spending is inherently expressive and therefore subject to strict scrutiny rather than intermediate scrutiny.

I take Stevens and Breyer to be saying that enough of the activities of campaigns are nonexpressive that laws restricting campaign contributions are laws restricting conduct that has some expressive elements and is therefore subject to the O'Brien test. I take Volokh and Whelan, as well as, more importantly, five Justices of the Supreme Court, to be saying that even when a campaign rents office space it is doing so for an expressive purpose--namely, to promote the candidate--so that essentially all campaign spending is expressive (with the possible exception of the Watergate break-in).

Who's right here? I think there is a great deal to be said for both perspectives and that precedents from non-campaign cases are not all that helpful. In the end, it may not matter. I suspect that a judge who wants to uphold campaign regulations can usually do so regardless of the level of scrutiny, and likewise for a judge who wants to strike them down.