Why There’s No Free Speech Right to Unlimited Campaign Spending

• In Event: Campaign Finance and Democracy: Dilemmas and Solutions

Abstract

It has long been a refrain from activists for campaign finance reform that “money is not speech.” On one level, this is a truism. On another, it is based on a confusion. Generally, a further inference is drawn: that, because money isn’t speech, it can be regulated without any trouble for the First Amendment. But the trouble begins with the recognition that money is necessary for much speech. While it isn’t necessary to literally exercise one’s vocal chords, it is necessary to engage in most forms of written speech and protest. So, if money is necessary for speech, and speech is protected by the First Amendment, does this mean that restrictions on how much we contribute to political campaigns or otherwise spend in politics violate the First Amendment?
I argue that campaign finance restrictions do not necessarily violate our free speech rights under the First Amendment, though for a different reason. On the view I develop, speech is—in one important sense—a threshold right. We have a right to speak and possibly be heard by audiences generally, but not to be heard by massively large audiences in particular. I’m not here interested in specifying exactly what the threshold audience size is, but it should be clear that the audiences sought by political campaigns’ advertisements, at the very least, exceed the threshold. Indeed, political advertisements tend not to be developments or even expressions of the self at all, but messages carefully honed by teams of consultants for the purpose of exerting political influence on the masses. Access to speech platforms like mass media is therefore not necessarily guaranteed by right to every individual who can afford it.
I say that speech is a threshold right “in a sense.” The sense I mean is as a right that serves the speaker’s interests, if we adopt philosopher T.M. Scanlon’s distinction between speaker and audience interests. While speakers have claims to speak in order to advance interests such as autonomy, self-expression, and self-development, audiences also have claims to have access to certain speech in order to advance similar interests in autonomy and self-development. Without adequate information, voters cannot hope to make informed, autonomous decisions about politics. I contend that when it comes to speech to mass audiences, audience interests clearly predominate over speaker interests, and the former should therefore determine the contours of the speech right. Campaign finance restrictions thus only violate the First Amendment if they are not in the interests of voters (an argument I take up elsewhere).

Author

• Erin Miller, Princeton University