Money talks — it usually means that people use money to get their way, or they’re influential and powerful because they have money. But does money literally talk? Will the Supreme Court take us to new worlds and find that anonymous campaign contributions are protected speech? The underlying logic of the Supreme Court’s recent precedent on the First Amendment suggests that it will.
Citizens United v. FEC, 558 U.S. 310 (2010), is best known for removing restrictions on corporate speech, but part of its rationale is the inevitability of money in politics. The case explains that “[a]ll speakers, including individuals and the media, use money amassed from the economic marketplace to fund their speech, and the First Amendment protects the resulting speech.”
In other words, you need money to speak, because otherwise you won’t be heard above the din. This theme dates back to the Supreme Court’s seminal election law decision, Buckley v. Valeo, 424 U.S. 1 (1976). Buckley held that “virtually every means of communicating ideas in today’s mass society requires the expenditure of money. The distribution of the humblest handbill or leaflet entails printing, paper, and circulation costs. Speeches and rallies generally necessitate hiring a hall and publicizing the event. The electorate’s increasing dependence on television, radio, and other mass media for news and information has made these expensive modes of communication indispensable instruments of effective political speech.” If you want to speak, you need money, and so money is speech. The First Circuit reads Buckley this way, observing that Buckley stands for the principle that “money spent on communication [is] the equivalent of speech itself.” Clifton v. FEC, 114 F.3d 1309, 1319 (1st Cir. 1997) (citing Buckley).
What about the political campaign contributions – is that protected speech? Again, the answer is yes. In a plurality opinion in McCutcheon v. FEC, 134 S. Ct. 1434, 1441 (2014), Chief Justice Roberts held that “[t]he right to participate in democracy through political contributions is protected by the First Amendment.” Other cases make the same point. See, e.g., Wentworth Precious Metals v. City of Everett, 2013 U.S. Dist. LEXIS 14718, at *12 (D. Mass. Feb. 4, 2013) (“As a matter of established Supreme Court law, campaign contributions are a form of protected speech.”)
Does anonymous speech enjoy First Amendment protection? You betcha. In McIntyre v. Ohio Elections Comm’n, 514 U.S. 334 (1995), the Supreme Court struck down a ban that prevented distribution of anonymous political leaflets. The Court reasoned that “the decision in favor of anonymity may be motivated by fear of economic or official retaliation, by concern about social ostracism, or merely by a desire to preserve as much of one’s privacy as possible . . . an author’s decision to remain anonymous, like other decisions concerning omissions or additions to the content of a publication, is an aspect of the freedom of speech protected by the First Amendment.”
If money is speech, and campaign contributions are speech, and a person has the right to speak anonymously, the logical conclusion is that a person has the right under the First Amendment to make anonymous campaign contributions. Or, to channel your inner Vulcan and state it as a logical syllogism:
- anonymous speech = speech
- speech = campaign contributions
- money for political campaigns = speech
- speech = protected by the First Amendment,
- therefore, anonymous campaign contributions = protected by the First Amendment.
Some might say that unleashing anonymous campaign contributions is like unleashing the Wrath of Khan. But the Supreme Court’s recent trend of favoring individual rights over group rights (think emphasizing the individual right of free exercise of religion over the group right of preventing establishment of religion) suggests that it might boldly go where no court has gone before.
In the campaign finance context, the Supreme Court has traditionally weighed the individual right to spend money in elections against the group interest in protecting against corruption or the “appearance” of corruption. See, e.g., McCutcheon v. FEC, 134 S. Ct. 1434, 1441 (2014). For anonymous campaign contributions, this means the Court is likely to weigh the individual right to be free from threats, harassment, or reprisals if a donor’s name is disclosed against preventing corruption or the appearance of corruption.
Returning to Citizens United, the Supreme Court declined to constitutionalize anonymous campaign contributions, at least on paper. The plaintiff in Citizens United argued that its donor disclosure requirements chilled financial contributions and should be struck down. The Supreme Court rejected the argument, reasoning that no evidence existed that any of the donors were subjected to threats, harassment, or reprisals if their names were disclosed. Justice Thomas dissented, arguing that a person has a constitutional right to make anonymous political campaign contributions. He reasoned that “Congress may not abridge the ‘right to anonymous speech,'” and he could not “endorse a view of the First Amendment that subjects citizens of this Nation to death threats, ruined careers, damaged or defaced property, or pre-emptive and threatening warning letters as the price for engaging in core political speech” by donating money.
After Citizens United, the Supreme Court hasn’t been too worried about the “appearance” of corruption. It didn’t think twice about the appearance of corruption in Am. Tradition P’ship, Inc. v. Bullock, 567 U.S. 516, 517 (2012), where the Supreme Court refused to revisit its Citizens United decision, notwithstanding the existence of actual evidence of corruption that served as the basis to restrict corporate campaign contributions. It wasn’t worried about the appearance of corruption in McCutcheon when it removed aggregate limits to campaign contributions in 2014. And in the criminal context, the Supreme Court refused to criminalize a governor’s behavior when he did lots of nice things for a constituent who gave him $175,000 in loans and other goodies. McDonnell v. United States, 136 S. Ct. 2355, 2371 (2016) (an elected official expressing support for a constituent’s project is not illegal “as long as the public official does not intend to exert pressure on another official or provide advice, knowing or intending such advice to form the basis for an ‘official act'”). On the flip side, the Supreme Court recently upheld restrictions on campaigning for judges in Williams-Yulee v. Fla. Bar, 135 S. Ct. 1656 (2015), but that case is an outlier because judges (unlike politicians) have a duty to remain impartial.
In today’s hyper-partisan political atmosphere, it seems plausible that a controversial group, or donors who support a controversial candidate, will be able to put forth evidence of actual or likely subjection to threats, harassment, or reprisals for their campaign or political contributions.
If this occurs, the Supreme Court may come face-to-face with the final frontier of money in politics. Will the Court favor the individual right to support political candidates free from criticism, and hold that a constitutional right exists to contribute anonymously to campaigns for all donors? In today’s online world, more so than when the Supreme Court decided Citizens United in 2010, it’s pretty easy to identify and criticize people for their political donations. Or will the Court find that the group right of corruption or appearance of corruption is sufficient to require donors to disclose their identity? Time will tell (unless someone traveling through space on a five-year mission finds a temporal vortex first).