Money Talks but It Isn’t Speech

by Deborah Hellman

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The Article challenges the central premise of our campaign finance law, namely that restrictions on giving and spending money constitute restrictions on speech, and thus can only be justified by compelling governmental interests. This claim has become so embedded in constitutional doctrine that in the most recent Supreme Court case in this area, Citizens United v. FEC, the majority asserts it without discussion or argument. This claim is often defended on the ground that money is important or necessary for speech. While money surely facilitates speech, money also facilitates the exercise of many other constitutional rights. By looking at these other rights, the Article calls attention to the fact that sometimes constitutional rights generate a penumbral right to spend money and sometimes they do not. Thus, the fact that money facilitates the exercise of a right is insufficient to show that the right includes a penumbral right to give or spend money. The Article argues that we ought to broaden the lens through which we view campaign finance cases. Rather than asking whether a restriction on campaign giving or spending violates the First Amendment, we should ask instead, when do constitutional rights generate a penumbral right to spend money?