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).