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 spending money to speak, the Supreme Court has held, are restrictions on speech, and are thus generally unconstitutional.
Rule #2: The government can, though, 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 (whether religious or secular) 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 non-citizens 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:
Rule #1: Your right to speak, like most of your other rights, includes the right to spend your money to speak.
Rule #2: Contributions given to candidates can be restricted, though speech said independently of the candidates is protected.
Rule #3: 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.
Rule #4: 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.
Written by Eugene Volokh, who is a First Amendment law professor at UCLA.
Produced and edited by Austin Bragg, who is not.
This is the fifth episode of Free Speech Rules, a video series on free speech and the law. Volokh is the co-founder of The Volokh Conspiracy, a blog hosted at Reason.com.
This is not legal advice.
If this were legal advice, it would be followed by a bill.
Please use responsibly.
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Music: “Lobby Time,” by Kevin MacLeod (Incompetech.com)
Licensed under Creative Commons: By Attribution 3.0 License
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