This House believes the expenditure of money should be protected as speech.

The Supreme Court’s ruling in Citizens United v. Federal Election Commission[1] held that the First Amendment to the U.S. Constitution, which protects freedom of speech, prohibited the government from putting restrictions on independent political expenditures by groups such as corporations or trade unions. It did maintain limits on political donations that such groups can give directly to candidates. Therefore, while trade unions and corporations, among others, are not permitted to donate unlimited sums of money to political campaigns, there is no cap on how much they can spend trying to influence an election through issue or attack ads, or by giving money to so called PACs (political action committees), groups which support a candidate but are legally prohibited from coordinating with that candidate. The Citizens United decision built on two previous Supreme Court cases: Santa Clara County v Southern Pacific Railroad (1886),[2] where the Justices first stated that constitutional protections also applied to corporations; and Buckley v Valeo (1976)[3] which established that the expenditure of money could constitute political speech and was, therefore, protected by the First Amendment. The Citizens United decision was arrived at through a two-pronged argument based on previous jurisprudence by the Court: that spending money in an election is a form of political speech and therefore comes within the purview of the First Amendment; and that corporations are also entitled to constitutional protections and therefore their expenditures during an election are also covered by the First Amendment. This debate focuses on the first premise of that argument: is the expenditure of money in an election a form of speech for the purpose of the First Amendment?

Read the case study ‘Does money have the right to speak?’ on Free Speech Debate

[1] U.S. Supreme Court, Citizens United v. Federal Election Commission, (2010), http://www.law.cornell.edu/supct/html/08-205.ZS.html

[2] U.S. Supreme Court, Santa Clara County v. Southern Pacific R. Co., (1886), http://supreme.justia.com/cases/federal/us/118/394/case.html

 

Title 
Money is intrinsic to political speech.
Point 

In Buckley, the Justices declared: “virtually every means of communicating ideas in today's mass society requires the expenditure of money. The distribution of the humblest handbill or leaflet entails printing, paper, and circulation costs. Speeches and rallies generally necessitate hiring a hall and publicizing the event. The electorate's increasing dependence on television, radio, and other mass media for news and information has made these expensive modes of communication indispensable instruments of effective political speech.”[1] In the 2008 election, presidential candidates spent 1.7 billion dollars on their campaigns[2]. This helps to show that nowadays, the effective communication of political ideas cannot be achieved without the expenditure of money.  Therefore, one cannot protect political speech and at the same time place restrictions on the main resource which makes it possible, there is little point in freedom to elucidate ideas without the ability to spread those ideas. Spending money has become an inextricable component of political communication.

[1] U.S. Supreme Court BUCKLEY v. VALEO, 424 U.S. 1 (1976). http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=424&invol=1

[2] Jonathan D. Saland, “Spending Dobuled as Obama Led First Billion Dollar Race in 2008”, Bloomberg 2008. http://www.bloomberg.com/apps/news?pid=newsarchive&sid=aerix76GvmRM

Counterpoint 

Something can be an appendage to a right. But it does not mean the government has an obligation to afford it the same protections as the right itself. Effective communication of political ideals also requires access to airways, printing presses, campaign staff, etc. But the government has no obligation to treat access to these as a Constitutional, inviolable right, on par with one’s freedom to say what she pleases. 

An expression of an opinion is protected strictly by the letter of the law.  However, the Citizen's United decision effectively expands this protection to two new entities: 1) non-person and 2) act of spending.  Rather than reinterpreting current legislation that protects free speech, new laws ought to be created seeking to protect these two entities from committing to political expressions.  And, this has to be exercised through the legislative branch rather than judicial.

With the Citizen's United decision, the judicial branch is effectively writing new legislation that is 1) recognizing corporate entities to have same political expression rights as citizens/individuals and 2) redefining the act of spending to be the same as an expression of an opinion as well as an act of demonstrating an expression of an opinion.

Title 
Money as “symbolic expression”.
Point 

Not only is money instrumental to effective political communication, the expenditure of money in support of a campaign or cause is also, in itself, a form of political expression. The gesture of donating money expresses one’s allegiance to and endorsement of a candidate’s or organization’s stance on the issues that form the political discourse of the society we live in. It is a basic way of political engagement. It is also one which is most readily available to any citizen. Therefore, donating money is a speech act which needs to be protected, in the same way burning a flag is considered to be a gesture of “symbolic expression” which is protected by the First Amendment[1].

[1] Eugene Voloch, “Flag Buring and Free Speech”, Wall Street Journal 2009. http://online.wsj.com/article/SB124657642816289111.html

Counterpoint 

Money cannot be considered a form of symbolic expression the same way burning a flag is. Money only magnifies a certain idea, by giving it a greater platform. It is not a constitutive part of speech, or speech in itself. If someone burns a flag in political protest the point she’s making does not become more powerful or popular by burning additional flags, nor does her influence become directly proportional to the amount of flags she burns. The symbolic gesture of a donation and the endorsement that comes with it does not also require the right to spend unlimited sums of money to express one’s support. 

Title 
Money as a metric of support for political ideas.
Point 

Money is actually a very effective way of gauging the success of the ideas presented to the electorate, it shows the best political ideas and personalities in the through the market. It is often argued that politicians who spend a lot of money win elections. However, when this hypothesis was scientifically tested, it turned out that in fact successful and popular candidates merely attracted more money, the same way they attract more volunteers, more endorsers, and more votes[1]. Therefore, money, like an endorsement, is just a demonstrative way of throwing one’s weight behind a candidate one agrees with. Viewed in this context, money is not some sinister device for unpopular ideas to rise to the top against the will of the majority, but, like an endorsement, a form of speech supporting those ideas which are already popular enough to attract it.

[1] Steven D. Levitt “Using Repeat Challengers to Estimate the effect of Campaign Spending on Election Outcomes to the U.S. House”. The Journal of Political Economy, Volume 102, Issue 4, August 1994, pp. 777-798. http://pricetheory.uchicago.edu/levitt/Papers/LevittUsingRepeatChallengers1994.pdf

Counterpoint 

Money gives a megaphone to one point of view. That view then gains more notoriety by spending more money to advance and promote it, by using mass media to bring it to the attention of a broader group of people, by hiring advocates to persuade a broader audience, by creating hype around an issue or candidate, with financial resources. Figuring out what came first, the money or the popularity these candidates gained; is a chicken or egg dilemma. Money and popularity are part of a self-reinforcing cycle

Title 
Money is property.
Point 

In his concurring opinion in Nixon v Shrink Missouri Government Pack, Justice John Paul Stevens said: “Money is property; it is not speech. Speech has the power to inspire volunteers to perform a multitude of tasks on a campaign trail, on a battleground, or even on a football field. Money, meanwhile, has the power to pay hired labourers to perform the same tasks. It does not follow, however, that the First Amendment provides the same measure of protection to the use of money to accomplish such goals as it provides to the use of ideas to achieve the same results.”[1] In other words, simply because money and speech can be means to the same end, it does not automatically mean they deserve the same level of protection. The freedom to use one’s property as she sees fit is different from allowing someone to say what she pleases.

[1] Nixon v. Shrink Missouri Government PAC, U.S. Supreme Court 2000 http://www.law.cornell.edu/supct/html/98-963.ZC.html

Counterpoint 

Money is a fungible resource and can fulfil different roles depending on the context in which it is used.  It can be exchanged for almost anything and should be treated differently according to the circumstances in which it is used. It can be exchanged food, housing, weapons, medicine, services, hired hands. More conventional examples of property, such as real estate, or a car, have no equally fungible characteristic. When it is used to advance political debate, money becomes inherent to political speech. Therefore, in the context of campaign contributions and expenditures money deserves the protections of the First Amendment. 

Title 
Unlimited political contributions undermine fair democratic representation.
Point 

Allowing for unlimited political contributions under the protection of the First Amendment distorts one of the most fundamental democratic tenets, the principle of fair representation – “one person, one vote.”[1] The Supreme Court has in the past also recognized this principle to mean more than the right to cast one vote which is counted equally. In Reynolds v Sims the Court held that “full and effective participation by all citizens in state government requires… that each citizen has an equally effective voice in the election of members of the state legislature”.[2] Such an “equally effective voice” is undermined by one individual or organization being able to influence the votes of thousands or hundreds of thousands through the deployment of financial resources which the average voter does not possess. This undermines the fair scheme of representation that is fundamental to a veritable democracy.

[1] John Rawls, Political Liberalism, Chapter 12: “Maintaining the Fair Value of Political Liberties”

[2] Reynolds v Sims, U.S. Supreme Court, 1964. http://www.law.cornell.edu/supct/html/historics/USSC_CR_0377_0533_ZO.html

Counterpoint 

Taken to its logical conclusion, such an argument can have anti-democratic implications. Perhaps the government should also cap the amount of time someone can volunteer to a political campaign or in support of a political cause. Other members of the electorate might have greater time or financial constraints which may not permit them to dedicate equal amounts of time influencing the votes of their fellow citizens.  And if one advocate is superior in eloquence, persuasion, or charisma to others, should she not be permitted to use her talents in support of her cause or candidate, because her voice is essentially “more effective”, to paraphrase the Court? Such an outcome-focused approach to the definition of fair representation ends up infringing on citizens’ fundamental right to pursue the advancement of their interests within the democratic debate.

Title 
Money stifles, it does not advance debate.
Point 

We protect speech under almost all circumstances and cherish its freedom as a tenet of democracy because it enhances debate and better decision-making. We believe that in the free marketplace of ideas, where everyone is given an equal opportunity to advance competing points of view, based on ever more complete information, voters will be better informed to make the right choice for themselves in the voting booth. But money, unlike speech, does not have the intrinsic property of enhancing a debate. At best, it can be a facilitator for the debate, without having communicative value of its own. But at worst, instead of enhancing the democratic debate, it distorts it, by giving certain ideas disproportionate influence, based not on the value and strength of their arguments, but on the spending power of their supporters. A clear example is the U.S. Tea Party movement, which has not enriched the debate in American politics. It has made it acrimonious, divisive, and radicalized. The Tea Party has empowered the fringes of American extremism. One has to wonder if these ideas would have done so well on their own, without having been bankrolled by millionaires like Rupert Murdoch and the Koch brothers[1]. It may also be used to stifle the other side; it is notable that in the 2012 presidential campaign more than 80% of adverts were negative so not attempting to inform voters.[2] For this reason, not only does money not fulfil the role which earns speech its expansive protections, it actively works against it. Money should be tightly controlled, not equated to speech and given limitless protection.

[1] Frank Rich, “The Billionaires Bankrolling the Tea Party”, New York Times 2010. http://www.nytimes.com/2010/08/29/opinion/29rich.html?_r=0

[2] “Mad Money: TV ads in the 2012 presidential campaign”, Washington Post, 14 November 2012. http://www.washingtonpost.com/wp-srv/special/politics/track-presidential-campaign-ads-2012/

Counterpoint 

This point of view assumes an inherent virtue of middle of the road, status quo ideas, and picks winners and losers before the debate even gets a chance to occur. It presupposes that certain ideas automatically deserve less ‘airtime’ than others because at the moment they happen to be unpopular. Every great idea which moved the debate forward and modernized the world, from the abolition of slavery to universal suffrage, started as a fringe, unpopular idea at one time. Unpopular ideas, whether they turn out to be good or bad, might need a financial boost to join the debate that may establish their value. They cannot simply be pre-emptively deemed unworthy before even being scrutinized in the marketplace of ideas. 

Bibliography 

Pellot, Brian, ‘Does money have the right to speak?’, Free Speech Debate, 10 February 2012, http://freespeechdebate.com/en/case/does-money-have-the-right-to-speak/

 

Steven D. Levitt “Using Repeat Challengers to Estimate the effect of Campaign Spending on Election Outcomes to the U.S. House”. The Journal of Political Economy, Volume 102, Issue 4, August 1994, pp. 777-798. http://pricetheory.uchicago.edu/levitt/Papers/LevittUsingRepeatChallengers1994.pdf

John Rawls, Political Liberalism, Chapter 12: “Maintaining the Fair Value of Political Liberties”

Reynolds v Sims, U.S. Supreme Court, 1964. http://www.law.cornell.edu/supct/html/historics/USSC_CR_0377_0533_ZO.html

Frank Rich, “The Billionaires Bankrolling the Tea Party”, New York Times 2010. http://www.nytimes.com/2010/08/29/opinion/29rich.html?_r=0

Jonathan D. Saland, “Spending Dobuled as Obama Led First Billion Dollar Race in 2008”, Bloomberg 2008. http://www.bloomberg.com/apps/news?pid=newsarchive&sid=aerix76GvmRM

U.S. Supreme Court, Citizens United v. Federal Election Commission, (2010), http://www.law.cornell.edu/supct/html/08-205.ZS.html

U.S. Supreme Court, Nixon v. Shrink Missouri Government PAC, (2000).

http://www.law.cornell.edu/supct/html/98-963.ZC.html

U.S. Supreme Court, Buckley v. Valedo, (1976), http://www.law.cornell.edu/supct/html/historics/USSC_CR_0424_0001_ZS.html

U.S. Supreme Court BUCKLEY v. VALEO, 424 U.S. 1 (1976). http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=424&invol=1

U.S. Supreme Court, Santa Clara County v. Southern Pacific R. Co., (1886), http://supreme.justia.com/cases/federal/us/118/394/case.html

Eugene Voloch, “Flag Buring and Free Speech”, Wall Street Journal 2009. http://online.wsj.com/article/SB124657642816289111.html

 “Mad Money: TV ads in the 2012 presidential campaign”, Washington Post, 14 November 2012. http://www.washingtonpost.com/wp-srv/special/politics/track-presidential-campaign-ads-2012/

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