Campaign finance laws restrict the ability to give or spend money for political purposes. Supreme Court decisions treat these laws as restrictions on political “speech,” which are therefore subject to heightened judicial review. U.S. campaign finance doctrine focuses on the connection between restrictions on giving and spending money and the ability to exercise the right to freedom of speech. The Court has reasoned that because money facilitates or incentivizes speaking and can itself be expressive, restrictions on giving and spending money should be treated as restrictions on “speech” for purposes of constitutional analysis. This manner of framing the inquiry is overly narrow, however. The assumption that the right to spend money is inherently protected within the right to political expression itself has limited the perspective of both the Court and commentators.
The Court is surely right that money is useful to the exercise of FirstAmendment rights. But this is not because money has a unique connection to speaking. Rather, money facilitates the exercise of the right to free speech just as it does the exercise of many other constitutionally protected rights. It would be difficult to obtain an abortion without money, for instance. While the right to abort a pre-viable fetus thus likely includes the right to pay a doctor to perform this service, other constitutional rights would not be thought to include the right to spend money to effectuate them. The right to vote, for instance, does not include the right to buy or sell votes, and the right to sexual intimacy does not include the right to pay a prostitute for sex. I develop these claims in another article, Money Talks But It Isn’t Speech, in which I argue that we ought to think about restrictions on giving and spending money in politics through a wider lens.Rather than focusing on the connection between money and speech specifically, Money Talks suggests we explore the relationship between money and rights in general by examining when constitutional rights include a concomitant right to give or spend money to exercise the right effectively, and when they do not include this concomitant right.
In that article, I contend that that some rights should be understood to include a penumbral right to give or spend money. Abortion exemplifies this sort of right, I argue, because women usually cannot terminate pregnancies without spending money for a doctor’s services. However, other rights, notably voting and sexual intimacy, should be understood in the opposite way. The right to vote and the right to sexual intimacy with the partner of one’s choosing do not seem to include the right to spend money and this conclusion depends, in part, on the fact that one can vote and have sex without the need to spend or give money.
These insights lead to the conclusion that the fact that money facilitates or incentivizes the exercise of a right is insufficient on its own to show that a right includes a concomitant right to give or spend money. The final section of that article articulates a theory that begins to answer the question of when rights include a right to spend money and when they do not. Briefly, I argue as follows: if the exercise of a constitutional right depends on a good that is distributed via the market, as abortion services are, then a right which depends on that good must include the right to spend money to effectuate it. If a right depends on a good that is not distributed via the market, as votes are not, then the right at issue ought not to include the right to spend money to effectuate it.
Money Talks develops this account by testing the theory against hypothetical cases. No state has attempted to limit the right of women to pay abortion providers, so the Court has not needed to address the question whether the right to abort a pre-viable fetus includes the right to spend money to pay a medical provider. The right to spend money for sexual services, i.e. prostitution, is restricted in all states, but these laws have yet to be challenged as inconsistent with the right of sexual intimacy protected in Lawrence v. Texas.
This Article continues the project of exploring the connection between money and rights. The overarching question is the same: When do constitutionally protected rights include an accompanying right to spend or give money to effectuate them? In Money Talks, I drew on shared intuitions about how hypothetical cases might be resolved by courts. In this Article, I turn from the normative to the descriptive, looking at how the Supreme Court and some lower courts have begun to answer this question. This analysis has two goals. First, I hope to encourage courts and scholars to explore the relationship between money and rights.” Second, I hope to deepen and to complicate our overly narrow approach to campaign finance issues by embedding questions concerning the constitutionality of campaign finance regulation within the broader discussion of the relationship between money and rights. Restrictions on giving and spending on political activity, I argue, raise general questions about when constitutionally protected rights include the right to give and spend money to effectuate them.
This Article proceeds as follows. Part II describes the two different approaches to the relationship between money and rights that are found in the case law. I call these the “Integral Strand” and the “Blocked Strand.”Those cases that adhere to the Integral Strand treat a specific constitutionally protected right as entailing a concomitant right to spend money to effectuate the underlying right. By contrast, cases following the Blocked Strand treat other constitutionally protected rights as not entailing a concomitant right to spend money to effectuate the underlying right. This Part first describes First Amendment cases of each type, then goes on to describe cases focused on other constitutionally protected rights that fall into each category. Part II shows that courts have a choice about whether to treat a particular constitutional right as entailing an accompanying right to spend money. When faced with a new constitutional right, a court therefore must decide whether it falls into the Integral or Blocked Strand. Part III illustrates this point by describing how both the Fifth and Eleventh Circuits are wrestling with precisely this question in their application of Lawrence v. Texas, the 2003 Supreme Court decision that struck down laws against homosexual sodomy.
Using the cases discussed in Part II and III, Part IV offers an account of why the Supreme Court and other courts treat some rights as following the Integral Approach and some the Blocked Approach. Then, using this theory, which I term “Adequacy Theory,” Part V suggests that some of the cases described may be incorrectly decided. Part VI explains the ways in which the theory, outlined in Part IV, is consistent with the normative vision I advocate in Money Talks.
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"There is reason to believe that the fiction of the "corporate speaker" runs counter to foundational First Amendment principles."
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