Money Talks but It Isn't Speech
This Article challenges the central premise of our campaign finance law, namely that restrictions on giving and spending money constitute restrictions on speech and thus can only be justified by compelling governmental interests. This claim has become so embedded in constitutional doctrine that in the most recent Supreme Court case in this area, Citizens United v. FEC, the majority asserts it without discussion or argument. This claim is often defended on the grounds that money is important or necessary for speech. While money surely facilitates speech, money also facilitates the exercise of many other constitutional rights. By looking at these other rights, this Article notes that sometimes constitutional rights generate a penumbral right to spend money and sometimes they do not. Thus the fact that money facilitates the exercise of a right is insufficient to show that the right includes a penumbral right to give or spend money. The first contribution this Article makes is to identify this question: when do constitutional rights generate a penumbral right to spend money? The second contribution this Article makes is to provide an answer. When a right depends on a market good for its exercise, the right generates a penumbral right to give or spend money. When a right does not depend on a market good for its exercise, the right does not include a penumbral right to spend money. Using this account, this Article argues that the right to give and spend money in connection with elections need not be protected as speech under the First Amendment.
95 Minnesota Law Review 953 (2011).