"Money is property; it is not speech." So wrote Justice John Paul Stevens in a vigorous concurrence with the recent Supreme Court decision in Nixon v. Shrink to uphold Missouri's limitations on campaign contributions.
The decision heartened advocates of reform, who now have firm footing on which to combat the insidious creep of soft money in campaigns. Both Justices Stephen Breyer and Anthony Kennedy, the latter writing in dissent, urged Congress to revisit soft-money reform and to take the job seriously.
The immediate effect is to bury the arguments of Senate Majority Leader Trent Lott, Sen. Mitch McConnell (R-Ky.) and others who cite the First Amendment to oppose soft-money legislation in Congress. Still, Nixon is only half a victory because it preserves the curious constitutional distinction between campaign contributions and expenditures that the court first devised in 1976, in Buckley v. Valeo.
That distinction--which views expenditures as speech-enhancing but contributions as potentially corrupting--has produced a foreseeable result. By capping contributions but allowing unlimited expenditures, the court has created the perfect condition for a black market in campaign money--high demand for a suppressed supply of dollars. The result, as Kennedy says, is a "new evil" that "is itself a distortion of speech."
The long-term reach of the Nixon decision depends on whether and how the justices respond to this "evil." Kennedy surprised everyone with his comment that it might be possible for Congress and legislatures to "devise a system in which there are some limits on both expenditures and contributions," but the logic of his statement is inescapable.
The problem with Buckley is not just its "halfway house" distinction between contributions and expenditures, as Kennedy put it. The logic of unlimited expenditures is itself suspect, as evidenced by the fact that we reject it in so many other parts of our civic and political life.
A lawyer arguing a case in the U.S. Supreme Court, for example, is allowed 30 minutes for oral argument. What if that lawyer wants more time and has the money to buy it? Shouldn't he or she be able to go to the court clerk's office and purchase an additional 30 minutes? Similarly, members of the House are limited to five minutes to present their views. Shouldn't they be allowed to buy more time? In Illinois, voters are allowed only five minutes to complete their ballots. Shouldn't they be allowed to buy more time?
The answer to all of these questions is no. As one former executive of the American Civil Liberties Union has said, "It's not speech to bribe a judge."
Why not? A new $100 bill is certainly crisp with eloquence. But we don't accept the money-as-speech argument elsewhere in our civic life for a democratic reason: The principles of fairness, due process and equality before the law do not permit it.
In courts, in Congress and in the voting booth we accept content-neutral time, place and manner restrictions, without which these institutions could not function.
Elections do not have the same easily identifiable boundaries that a judicial hearing or congressional session does, but they are not abstractions. They have a beginning and an end, and they are just as susceptible to distortion and destruction as any other institution would be if its rules allotted free speech according to one's ability to pay for it.
No one would suggest seriously that the Constitution should allow economic power alone to determine the rules for free speech in schools, the financial markets, advertising, public forums such as streets and parks, or public and private workplaces, from the factory floor to the executive boardroom. In all these settings, Americans approve of and sometimes even require limitations on speech.
Of course, any limitations on free speech are a concern in our constitutional system, and no one should suppose that the problem of cash in our campaigns has an easy First Amendment fix. Indeed, an overly simplistic characterization of money-as-speech has contributed to widespread public skepticism about politics and low voter turnout.
The Supreme Court has invited Congress to clean up campaigns without fear that sensible reform will violate the Constitution. As Justice Robert Jackson said a generation ago, "The Constitution is not a suicide pact."
Newton N. Minow is a Chicago lawyer and former chairman of the Federal Communications Commission. Craig L. LaMay teaches at Northwestern University's Medill School of Journalism.