“Money Is Not Speech”
One of the most oft-quoted – and IMNSHO lamest – arguments in support of First Amendment “Reform” is that draconian restrictions on campaign contributions and ads are okey dokey under the First Amendment because “money is not speech.” Technically, of course, it’s not, but has anyone seriously considered the implications of the theory that money can be divorced from what it is spent on? Let’s try applying McCain-Feingold logic to other cherished constitutional rights:
- Congress can pass a law forbidding any resident of a state that voted for McCain/Palin in 2008 to spend any money on a marriage license or any aspect of a wedding. Courts have ruled that marriage is a fundamental right. May sound a bit tough on marriage, but no matter: money is not marriage!
- DC and Chicago find a clever way around the ruling in Heller and the expected ruling in McDonald. Can’t ban handguns? No problem. Just pass an ordinance forbidding any resident to spend any money on any guns, ammunition, etc. No constitutional defect there; money is not guns!
- No one likes a justice system that works for the rich but not the poor, so rather than having justice for The Rich (TM), let’s tax the hell out of everyone to pay for free legal services for all who meet specified criteria, and then make it illegal for anyone to pay an attorney on his own. No problem there; money is not due process!
- OK, so maybe this “Money is not X” theory doesn’t work well outside the confines of the First Amendment. Well, surely it applies to the rest of the First Amendment itself, right? To test that theory, let’s pass a law providing for “clean” religion. To keep religions “clean,” the government will provide public funds to every religious organization that meets certain criteria, and then forbid every citizen to donate any of his own money to any of these organizations. No problem with that proposal, right? Money is not religion!
- Last but by no means least, let’s not forget the most important constitutional right of all, the one the framers considered too important to even mention in the Constitution, the right to choose so long as that choice is to obtain an abortion. South Dakota gives up the losing battle of trying to ban it outright, and instead passes a new law making it illegal to spend any money on an abortion, or on transportation to or from another state for purposes of obtaining an abortion. Surely Justices Stevens, Breyer, Ginsburg and Sotomayor would have no problem with that law, right? Money is not abortion!
Or we can use a teensy bit of common sense and recognize, as only a bare majority of our nation’s top court did, that while money technically is only property, it is fungible property which, as a practical matter, embodies whatever it is you choose to spend it on. And when a restriction on money specifically targets money spent on the expression of political ideas, then money sure as hell is speech. Thank God that a bare minimum of Supreme Court Justices understand this.









