Money as Access to Speech?

Part of the analysis I have found of the Citizens United v. FEC, 130 S.Ct. 876 (2010) decision centers around the ideas of corporate person-hood it relies upon and extends. I would argue, however, that the extension of corporate person-hood advanced by the Court in this decision was not unexpected. For example, a corporation can own property and is afforded all the rights which accompany property ownership. A corporation has the ability to sue and be sued. Also, like the Court indicated in its decision, the First Amendment's protection had long been recognized as applying to corporate speakers. Id. at 899. The Court had previously rejected the argument that a corporation, an association of persons, was not a natural person and not afforded First Amendment rights. Id. So, was this decision really as momentous as everyone believes it to be? With my limited knowledge of the law, I would argue yes. However, my argument stems not from the idea of corporate person-hood, but from the opinion's equation of freedom of speech with spending power or "money as speech."

Several critics of the decision have found the decision's equation with one's voice in free speech to one's spending power perhaps more troubling than its extension of corporate person-hood. Some critics refer to this idea as "money as speech." One critic of the decision, Roger Hodge, former editor of Harper's Magazine, said in a recent interview that he was most troubled by Justice Kennedy's replacement of the word "speak" throughout the decision with the words "contribute," "spend," and "buy." While I am somewhat troubled about the idea of money as speech, I do not necessarily agree with this characterization. The opinion itself explains why the ban on the amount of money a corporation is allowed to spend can invoke the First Amendment by stating that "[a]s a restriction on the amount of money a person or group can spend on political communication during a campaign, that statute necessarily reduces the quantity of expression by restricting the number of issues discussed, the depth of their exploration, and the size of the audience reached." Id. at 898. Thus, limiting its ability to speak freely as protected by the First Amendment.

One main concern about the theory of money as speech centers around value. If we view money as speech, obviously money has a specific value in society, so does this value translate to speech? The intrinsic answer is no. I assume most people would say that just because one speaker may have more money behind his or her message does not make it more valuable than the average person's message. However, if one looks at this theory as "money as access to speech" the message with the most spending power behind it would clearly be more valuable because the speaker would have more access to distribute the message and the listener would have more opportunities to receive that message. Thus, the more money certain a speaker has the more quantity of expression, issues discussed, depth of exploration, and the larger the audience reached. It this idea of money as access to speech which makes corporate political speakers/spenders more valuable.

The rebuttal to the arguments against money as speech are numerous. For instance, without the ability to distribute your speech, i.e. fund what you have to say, what use is the freedom. Putting substantial limits on constitutionally guaranteed freedoms will not with stand strict scrutiny. Therefore, if we view a corporation as a person in the eyes of the law and as defined by the First Amendment, there can be no outright ban political spending to support political speech absent the Government proving that the restriction "furthers a compelling interest and is narrowly tailored to achieve that interest." Id.

In conclusion, it can be argued that the idea of the wealthiest in society having more access to speech is not new. After all, corporations are associations of persons, so they should be acting in the best interests of those persons, which in theory could make a corporate political speaker better for society than an individual political speaker, who may be acting solely for his or her own interests.