“Money isn’t speech”: the great BCRA red herring
This morning’s post on John McCain and his dismissal of the First Amendment as a priority for US citizens lead me to think about his so-far-successful attempt to curtail the speech freedoms of we common Americans. McCain vigorously defends the BCRA, the so-called “McCain-Feingold Act,” using the chant-sounding mantra “money isn’t speech.” The comment is attributed to Supreme Court Justice Stevens in a case upholding a campaign contribution law in Missouri.
I submit to you all that this is a correct statement. It is also completely beside the point. The first time anyone actually rose to challenge the notion that money isn’t speech, they stepped up to defend a straw man argument and doomed themselves to a loss on the matter. Money is not speech. Money is property, exactly as Justice Stephens said. And therein lies the reason that the BCRA should have been held unConstitutional by the Supreme Court and why McCain and Feingold and anyone else defending this aspect of the law are full of crap.
Take a $10 bill and lay it on the table by itself. Allow 10 people to come in and ask them what message that $10 bill is conveying. You’ll likely get 10 different answers, none of which will involve a specific political position. Allow the 10 people to watch you pick that $10 up, walk over to one of several people wearing political party designations and hand it over, and you’ll get a very different result. The act of your handing that money over to a specific party or candidate conveys a very specific message of support for that party or candidate. They might still ascribe specific political stances to you that maybe you don’t hold, but your general support of that party or that candidate will be correctly interpreted by your contribution to that party’s or candidate’s treasury.
Money is never speech. It’s what you do with that money that can constitute the speech and it is the act of the campaign contribution that is the political speech McCain-Feingold has placed the limitation upon. The argument that “money isn’t speech” is a red herring wrapped around a fishhook the size of the USS Missouri and the Supreme Court swallowed right up to the sinker.
The BCRA went further with that in denying American Citizens the ability to get their message heard. The limitation on speech that kick in as we get closer to an election are designed to do nothing more than ensure incumbents have a huge advantage in keeping their jobs. It is the support of a message – the addition of one’s voice to many others in speaking out in unison on an issue or a candidate, in support of or in opposition to – that is the point of donating money. The money allows the purchase of air time necessary to convey a political message to as wide an audience as the candidate has access to and the donation of that money is the message, not the funds themselves.
If McCain actually believes that the “money isn’t speech” commentary is the heart of the argument, then he’s woefully incompetent at framing an issue for debate. This isn’t the man we need running for the Presidency under the banner of the GOP. Frankly, he’s not the man we need deciding on legislation for the rest of us but that, unfortunately, is Arizona’s problem. The best those of us who don’t live in that State can do is highlight the huge errors in logic and reasoning the man’s engaged in and hope those who do live there can hear the message.
