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Why we Cannot Use Money, nor Run for Office to Speak

April 3, 2011
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It is the discrepancies in what we determine speech to be that creates controversy and leads to litigation. Something deemed not to be speech can be subject to regulation.  Something characterized as speech cannot be limited or abridged in any manner.  The first amendment states, Congress shall make no law abridging the freedom of speech, or of the press (U.S Constitution). We all agree with the first amendment, yet for the law to be implemented successfully we must truly discover what is speech so that it is never limited, and what is not speech so that it can be regulated.  Can distinct actions take the form of speech as Mill suggests in his On Liberty, or is speech simply limited to professing one’s point of view removed from one’s actions. 

I will address the issue of whether certain actions can be deemed as speech.  The actions under question include donating money to a political candidate, spending money on one’s own candidacy, and the act of running for office. 

First I will acquaint all with U.S history on the subject.  In 1971, Congress passed a bill that placed a limit on how much could be donated and how much a candidate could spend of his own money for campaigning. The Supreme Court ruled on its constitutionality, in Buckley v. Valeo, and found that donating to campaigns is partially removed from free speech and as a result can be subject to regulation. Donating to campaigns is viewed more as an action than as pure speech and expression of one’s views. Furthermore, the Supreme Court found that spending limits of a candidate’s own money was abridging free speech and so struck down that portion.  As it stands today, no person can give more than $2400 to a candidate.  This limitation is imposed on everyone: the candidate’s friends, family members, and his wife or her husband.  Nevertheless, the Supreme Court found that limiting how much a candidate could spend on his or her behalf for an election was a violation of the first amendment.  This ruling has created controversy as many lawyers and politicians disapprove of the verdict in Buckley v. Valeo.  Today, Political Action Committees, PAC’s, can spend an infinite sum of money under the pretext of independent expenditures.  An independent expenditure is money spent without the cooperation or consultation of a candidate you are attempting to help.  PAC’s are well known for their spending on attack ads where they criticize the voting record of opponents.  This is allowed because this type of spending is not a direct donation to a candidate but rather is viewed as a supporter professing their own view on a candidate.  As it stands today, donating money for political candidacy is not speech but action and spending your own money for your own candidacy is speech. 

If one holds the opinion that we can speak through donating money, then one would conclude that the current limitations are unconstitutional.  Then, one ought to establish why we are restricting a person’s right to the first amendment.  I believe current limitations being imposed on the donation of funds to politicians is based on both on the restriction of content and context.  The restrictions are partially based on content because limitations are based on a per candidate basis.  Your view, or the content of your view, which can be expressed through your donation to a candidate is restricted to $2400. Yet one could donate $2400 to another candidate and this candidate is usually based on different content.     The limitation restricts a certain content, which is for example a massive communication to others that you agree with this candidate.  The fact that one could diversify donations and have it be legal and that donating to a single candidacy, or communicating a single content, is illegal means that the limitation is based on a restriction of content.  The limitation is also based on context as you can only donate a certain amount specified by time intervals.  For example, one can only donate so much to a political party per year. 

Another distinction needs to be made between a candidate spending their own money to communicate their view and a right to run for office.  I believe the former is speech while the latter is not.  A candidate who spends his or her own money for their own campaign is doing so in order to communicate their views on important issues.  Earlier we established that communicating one’s view on certain issues is speech and is distinct from running for office.  This is in essence the purpose of PAC’s. 

I agree with our current framework of statutes that the act of running for office is not free speech.  If you equate speech with a right to a candidacy then you must acknowledge that we do abridge speech in a multitude of ways.  In regard to residency requirements for running for office, how is it that you must sit and wait 5 years before you can speak?  Furthermore, one’s right to candidacy is abridged by how long one has previously served.  If running for office is a form of speech, then it is being taken away forever in this case.  Lastly, there are requirements to be on the ballot such as needing a certain number of petitions.  When has it been the case that you must obtain permission from a certain number in order to speak?  As stated above, an expression of your own ideas can be separated from the action of running for office.  This is why running for office can be regulated as it does not fall under the protection of the first amendment.

We all agree on the merits of the first amendment.  What we must focus on is refining our understanding of what is speech and what is not speech so we can justly apply the constitution.  The issue above is debated and many feel that the current regulation is in need of reform.  It is through a discussion of our opinions that we can come to a greater understanding of how to regulate or not regulate donations, and spending for political campaigns. 

http://www.nationalaffairs.com/publications/detail/the-myth-of-campaign-finance-reform

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