By Deborah Hellman. Full text here.
The 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 ground 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, the Article calls attention to the fact 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 Article argues that we ought to broaden the lens through which we view campaign finance cases. Rather than asking whether a restriction on campaign giving or spending violates the First Amendment, we should ask instead, when do constitutional rights generate a penumbral right to spend money? To that question, the Article offers the following 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, the Article argues that the right to give and spend money in connection with elections need not be treated as speech under the First Amendment.