Wednesday, October 30, 2013

Money Is Not Speech

Hannah Finnie at PoliMic indirectly makes a point that we have been suggesting, that when it comes to freedom of expression, Holmes is the anti-Scalia. Holmes said in his famous Abrams dissent that expressions of ideas are given near absolute protection, because we want our politics and government to be founded on truth, and the best test of truth is the ability of an idea to get itself accepted in the marketplace. In the McCutcheon case currently before the court, wealthy donors are seeking the ability to give unlimited amounts in federal elections. If granted that right, they would be able to wreck at least one marketplace:
Solicitor General Verrilli, who is representing the government, said as much in his oral argument. "Less than 500 people can fund the whole shooting match," he said, and if the aggregate limits are removed, there is a very real risk that "The government will be run of, by, and for those 500 people and that the public will perceive that the government is being run of, by, and for those 500 people."
Justice Antonin Scalia is a fierce advocate of freedom of expression, but he doesn't much value precedents or arguments from principle. He is a textualist, and the First Amendment says that "Congress shall make no law. . ." The Court decided years ago that money is speech, and -- well, that's the end of the discussion. As Finnie notes, Scalia is likely to agree with Mr. McCutcheon and his co-plaintiff the Republican National Committee. Maybe money sometimes is equivalent to speech, but we don't allow megaphones to drown out the other debaters. . . .