Can the government restrict people’s ability
to spend money on speech?
Here are the Four Rules of Free Speech and
Money.
Rule 1: Generally, your right to speak includes
the right to spend money to speak.
The government can’t limit, for instance,
a newspaper’s budget,
even if it thinks newspapers have too much
influence over elections and politicians.
The government can’t stop the National Rifle
Association or the Sierra Club
from spending money to praise the candidates
they like,
and it can’t limit what other Americans
spend, either.
Sometimes people frame the question as “Is
money speech?”
But that’s not right.
Here’s an analogy: The Sixth Amendment protects
criminal defendants’ right to hire a lawyer.
Say the government said,
“You can hire any lawyer you like, but you
can’t pay them more than $1000”
(It would be unfair, the theory goes,
for rich people to hire better lawyers than poor people can.)
That restriction would violate the Sixth Amendment—
but not because “money is a lawyer.”
but because the right to a lawyer includes
the right to spend money on a lawyer.
The same is true for most other rights.
The Supreme Court has held that people have
a right to send their children to private school.
If the government were to say,
“you can’t spend more than $1000 per year on private schooling,”
that would violate the right to educate your
children;
but again, not because “money is an education,”
but because the right to educate your children
includes the right to spend money on schooling.
Justice Breyer,
who’s actually open to substantial restrictions
on spending money for speech, put this well:
“A decision to contribute money to a campaign
is a matter of First Amendment concern—
not because money is speech (it is not); but
because it enables speech.”
So restrictions on pending money to speak,
the Supreme Court has held,
are restrictions on speech, and are thus generally
unconstitutional.
Rule #2: The government can limit
direct contributions to candidates,
as opposed to just spending money to speak
about candidates.
In 1976, for instance, the Supreme Court upheld
a cap on contributions to federal candidates.
The Court has also upheld even lower caps
(as low as $250) for state and local candidates.
Part of the reasoning behind that conclusion
is that contribution restrictions limit speech
less than expenditure restrictions,
precisely because restrictions on contributions
to candidates
still leave people free to say whatever they
like independently of the candidate.
Rule #3: The government may also bar nonprofit
organizations
from spending tax-deductible contributions
on political campaigning.
The charitable tax deduction is viewed as
a sort of a subsidy.
Say you’re in the 40% tax bracket;
if you give $1000 to a charity—you save
$400 in taxes.
That contribution is thus equivalent to your
paying $600 non-tax-exempt to the charity,
and the government forking over the $400.
Based on this subsidy theory,
the Supreme Court has held that the government
may attach conditions to this tax deduction.
One such condition is that groups that collect
tax-deductible money
aren’t supposed to use it to endorse or
oppose political candidates.
If they want to engage in such speech, they
can—
just with money they get without the tax exemption.
That’s why many groups, such as the ACLU,
the NRA, the Sierra Club,
actually have two related groups—
a so-called “501(c)(3)” group that collects
tax-deductible donations
and can’t use them for political campaigning,
and a “501(c)(4)” group that collects
non-tax-deductible donations
that it can use for politics.
Rule #4: The government may completely bar
people who aren’t citizens
or lawful permanent residents from spending
money to advocate for or against candidates.
Though noncitizens present in the U.S. generally
have broad First Amendment rights,
a federal court held that these rights can
be limited
when it comes to spending even small sums
of money related to elections.
The Supreme Court upheld that decision, though
the Justices didn’t issue a written opinion.
So, to sum up:
Your right to speak, like most of your other
rights,
includes the right to spend your money to
speak.
Contributions given to candidates can be restricted,
though speech said independently of the candidates
is protected.
The government can insist that tax-deductible
contributions
can’t be used to support or oppose candidates,
though nonprofits are free to politick for
candidates using non-tax-deductible donations.
The rule is different for non-citizens,
at least those who aren’t lawful permanent
residents;
they can be barred from spending money to
support or oppose candidates.
I'm Eugene Volokh and I approve this message.
