Is Money Speech? Free Speech Rules (Episode 5)
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Is Money Speech? Free Speech Rules (Episode 5)

November 11, 2019


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.

Only registered users can comment.

  1. #4 is laughable in this day and age. We have illegal aliens organizing marches in Washington D.C. with no repercussions.

  2. This idea that tax deductions are a subsidies is completely stupid, "well we won't steal from you as much so that means we're giving you free shit" No! That's not how stealing works!

  3. And this is why Libertarians cannot solve the corruption issue. Try as you might with a rhetorical flourish, money as speech still exists, one with unlimited funds will still overwhelm those with very little funds. That is a plutocracy and not a democracy. So the buying of politicians and regulatory capture is assured. But a libertarian would say "But the government should have the power to regulate such things, if the government didn't have the power, then they wouldn't buy the government." And exactly how do you plan to get to the state? Especially when the one the government is already bought, and two the means of how the government is bought is supported by you? At what point do you realize that you are a useful idiot? The ones who founded the libertarian party is the same people that are buying politicians and controlling regulation. It's almost like that libertarianism is just a means to an end and not an end itself.

  4. Money is NOT free speech. Money is bribery. Politicians are NOT going to listen to individuals who donate twenty bucks to their election campaigns. Politicians WILL do what the mega-donors tell them to do. Lobbying should be illegal, period. Politicians have demonstrated time and time again that they are nothing but unscrupulous lowlifes, so the temptation of accepting "legal bribes" should be taken away.

  5. This video was boring as hell, but I can tell it has a lot of substance.Thank you for attempting to shove this info into my thick skull. I will need to re-watch several times before it sinks in.

  6. Money is similar to speech in that government should stay the hell away from trying to dictate what people do with their own money (or voice).

  7. If money enables speech the why can't I pay a judge to get my case dismissed. I can say (or have my lawyer say) anything to a judge that I think will help me but I can't pay them.

  8. The unlimited donations assumes that the Political Action Committees are not directly working with the campaigns.

    This has been shown to not be the case. They essentially are the campaign.

    Therefore the PACs are part of the campaign and every donation should be limited to the contribution limit.

  9. I disagree with the conclusion that political spending can't be limited because of the 1st amendment on the grounds that we are all supposed to be equal and therefor no one should be able to speak "louder" than other people can afford. Everyone has the right to free speech and the weight of their speech should be determined by its merit not by their wealth. I also believe that the right to a fair trial is violated by poor representation as is often the case with public defenders and civil cases are in an even worse position.

  10. its simple: more money enables more speech when compared to someone with less money. For the rest of us peasants how the fuck do we compete.

  11. Citizens United needs go be overturned. Money corrupts politicians, that's just a fact. If we take money out of politics we will have a more honest system with politicians working for people rather than massive corporations.

  12. Love the ( vibraphone ? ) lobby music.
    Slowed it down because, I don't hear quickly. Think fast, yes. Hear fast, NO!
    Obfuscation, is the law of the land.

    Have a wonderful day,a day full of wonder.

    Actually it is the law of the water!
    Maritime admiralty law……..

  13. I'm a huge fan of Reason, but have a serious issue with this topic. I understand the premise put fourth, and on its face, agree. But here is the issue…people/companies/entities donating MASSIVE amounts of money to buy politicians is not good for America. We need to limit money in politics by NOT allowing people to donate or promote a candidate outside of their districts. In other words, there is absolutely no reason someone outside of a district should be able to donate to a congressional campaign. And, no one outside of a state should be able to donate to a senate race. Lastly, no one outside of the U.S.A. should be able to donate to a presidential campaign. If we can take some of the ungodly sums of money out of politics, perhaps we can force politicians to be of the people. for the people and not special interest groups. As far as I can tell, there is one major lobby group would would/does oppose this line of thinking….the media. They make billions every years on political ads.

  14. I can agree with some on Reasons video but this one loses me. Money should be very limited when involving politics. This view hurts our constitutional republic not aid it. This is why most politicians don’t listen to the people needs. This is a bribery loophole that should have never be allowed. Example I respect the 2nd amendment but I hate how the NRA needs to lobby for a bill of right. That should never be needed. Logic like this does make this necessary. Thus if anti gun crowd spends more money than the nra we lose our right even more because “donate” (bribe) to politicians that support there movement.

  15. So a corporation is a citizen or a lawful permanent resident? It seems Rule 4 should allow only actual humans, not fictionalized "persons" as the people inside a corporation (who themselves are citizens or legal permanent residents) can, but as a corporation is sure to have some people who wouldn't meet that criteria (say H1B visa).

  16. The invention of Bitcoin has proven that money is free speech by figuratively flipping the middle finger to all governments and central banks, and not being able to be stopped.

  17. Non-citizens cannot vote…
    Unless they are part of a caravan from Mexico that is almost guaranteed to vote Democrat.

  18. Democrats create power, Republicans buy it. Take away the uneccessary power and there won't be anything to spend money on.

  19. Barack Obama writes a book to sell his campaign ahead of the election, "The Audacity of Hope." He sells the publishing rights to a for-profit publishing company to actually make and distribute the book.

    In a world where Citizen's United was decided to disallow political speech by corporations this book would be illegal and an obviously violation of Obama's right to free speech.

  20. Does this mean I have a 1st Amendment right to send money to Al-queda? (This is entirely hypothetical. I have no wish to send them money nor would I ever do so.)

  21. Everyone should have equal rights. If it's ok to spend money to speak then everyone should have equal money. Because everyone does not have equal money then it should not be OK to spend money to speak.

  22. The awkward moment when you realized that Bribery, a form of Corruption, is protected as a 1st Amendment Right.

  23. In short, the government over reaches into every aspect of your life. Not because they care because they demand control.

  24. I should be able to support who ever I like with as much of my own money as care to give. It's union dues obligation and then using that money for campaign contributions that bothers me. If I join a club whose goal it is to get certain people elected for a cause that's fine… freedom to withdraw if I disagree. Union = no freedom to quit without losing employment .. and no ability to object to use of union monies to support candidates I disagree with. campaign finance reform was stupid… stop foreign money, stop forced campaign donation and I'm fine with it.

  25. So I guess this means the government can't limit contributions from outside of a political candidate's representative district? That's kinda a shame. I feel like external contributions like that can greatly bias local election results and basically can "shout down" the local speech. Like, take AOC for example, she gets the vast majority of her contributions from outside of, not only the district she represents, but outside of the state her district is in. Like, it just feels wrong to me that a candidate with wealthy backers can vastly outspend a grassroots campaign in a small or poor district. Even wealthy districts can't compete with one candidate getting funding from half the country, if the other isn't getting any. Seems like it only leads to a severe conflict of interest, given their victory, but what do I know

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