NORMAN — Americans write poetry, compose music, shout at rallies and pierce various body parts — all in the name of free speech as part of their First Amendment rights. But what about cold, hard cash? Is money speech? Is using money in support of a law or political candidate a form of free speech?
University of Oklahoma College of Law presidential professor Joseph Thai answered these questions and explained the labyrinth of campaign finance law Wednesday in his lecture “Campaign Finance: Before — and After — Citizens United” at the League of Women Voters of Norman luncheon.
Thai said current campaign finance laws have evolved from historical arguments involving a free marketplace of ideas and 21st century free speech case law.
Thai said two divergent views on whether money is speech exist in the U.S. Supreme Court. The current majority takes Justice Thomas’ viewpoint that money can be a form of free speech because individuals may either choose to spend his or her time speaking or individuals may spend his or her money to have someone speak for them.
“Under this majority opinion, money is fungible. It’s a one-to-one equation,” Thai said.
The minority viewpoint, represented by Justice Stevens, believes the majority’s analysis is too simplistic because money is both more and less than speech, Thai said.
“Money enables speech but can never speak itself, so it is less. But money has the ability to corrupt and influence, so it can be more than free speech,” Thai said. “The majority view presents the question: Does money get the same protections as free speech?”
The Supreme Court has struggled with answering this question and reconciling not putting caps on campaign expenditures as to maintain free speech, while at the same time limiting bribery and corruption and placing narrow caps on contributions made by individuals directly to candidates as seen in Buckley v. Valeo (1976).
“The decision in Buckley is somewhat schizophrenic,” Thai said. The decision in Citizens United v. FEC (2010) comes from a century-old argument made by writers like John Milton who said a free marketplace of ideas, including negative speech, brings forth the best ideas.
In Schwarzenegger v. Entertainment Merchants Association, the First Amendment was found to be blind to various types of free speech. Thai said Citizens United evolved from free speech cases like Entertainment Merchants to apply the same free speech principles to campaign financing.
Quoting the Supreme Court, Thai read the Citizens United opinion and said, “The First Amendment does not allow political speech restrictions based on a speaker’s ... identity.”
This ruling makes the free speech of spending money on campaigns: content agnostic, medium agnostic and speaker agnostic. However, Thai said the Citizens United ruling is not as broad as people think.
“It does not green light outside spending of Super Pacs,” he said. “What it does do is enable corporations to contribute.”
Criticisms of the Citizens United case abound. Thai said if campaign finance spending borrows its principles from an economic philosophy of a marketplace of ideas, then problems of those economic principles may permeate campaign finances, as well.
“Just like over concentration problems in the economic market, if you have a lot of money to spend, you can saturate the media market and buy a pretty big megaphone,” Thai said. “He who has the biggest megaphone may not have the best ideas, and the market may become distorted.”
To end his lecture, Thai turned to Bluman v. FEC (2012) to point out further Supreme Court inconsistencies.
“The majority actually believes that the identity of a speaker can’t be ignored,” he said. “In Bluman, the court upheld a lower court decision that bans foreign campaign contributions. The decision was unanimous with no explanation.”
This case suggests that a campaign contributor or “speaker” is not really agnostic. That despite the ruling in Citizens United, the Supreme Court doesn’t completely hold to the marketplace of ideas theory that more speech is better and as such campaign financing may continue to evolve in the future.
The League of Women Voters of Norman is a nonpartisan political organization that encourages informed, active participation in government. The league influences public policy through education and advocacy.
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