Speech Is Money. And Money is Speech. Either Way, Don't Cut Taxes.

Nick Gillespie | July 13, 2005

Former Reason intern and current New York Post columnist Ryan Sager reports on an incredible abuse of campaign-finance law in Washington state. Two Seattle radio hosts got behind a signature drive for a ballot intitiative designed to repeal a recently enacted tax hike on gasoline, talking about it a lot on their show. The group pushing the initiative, No New Gas Tax, clearly benefitted from the press.

A lawyer with the chief pro-tax hike group, Keep Washington Rolling, convinced a county prosecutor to file a suit against the initiative, claiming that the radio hosts' time was an in-kind contribution and that the initiative's organizers had failed to disclose it. Sager asks some questions:

So, what happens when a talk-radio jock is seen as "campaigning" for a candidate for governor? Or a state legislator? He could quickly find himself making an illegal contribution, far in excess of the limits.

And why do these types of enforcement actions always seem to cut in favor of the government?

San Juan County Prosecutor Randall Gaylord told me that his "personal opinion about the initiative played no part in this." But a Keep Washington Rolling press release quotes Gaylord as saying his county has "a lot at stake" in the initiative fight and that the gas-tax increase is "a fair way to pay for it."

If there's a silver lining, it's that citizens in Washington state seem to have little patience for this idiocy.

On Friday, No New Gas Tax turned in 420,518 signatures to get I-912 on the ballot -- some 200,000 more than needed.

According to Bader [head of No New Gas Tax], [the judge's] ruling ticked off voters and fueled signature-gathering tremendously.

"Maybe," he said, "I should report it as a contribution."

Whole thing here.

Comments

|7.13.05 @ 10:57AM|#

Well, I didn't get to read the article (a little crunched for time) but from what Nick excerpted I can only say: this was bound to happen. Never have i understood the logic of Buckley v. Valeo, equating "spending money" with "free speech." If there's two things the founding fathers managed not to conflate, it's speech and commerce.

I know people get antsy when there's talk of stifling campaign contributions (despite the fact it amounts to little more than bribery these days). But establishing the expenditure is speech wasn't the way to hold on to the right.

Because..... now we have the corresponding inevitable conclusion: speech equals expenditure. How can we argue that it's not? Or moreover, how can we argue that without having to overrule Buckley?

Once the concepts were conflated, this was bound to happen, and here we are. Should make for some neat verbal gymnastics, but the fact is there isn't much of a way for the fly to get out of the bottle now. As the headline says, speech is money and money is speech, and thanks to Buckley, that's a verbal and conceptual trap that isn't going to go away.

Jack William Bell|7.13.05 @ 1:34PM|#

Speaking as a local I can tell you that Seattle, and King County, politics have been dominated by one party for so long that we have descended into a kind of Chicagoan slime pit of corruption and political hackery. Just look at the mess of our last governor's election for an example.

The fact the 'one party' in this case is the Democrats is besides the point; this kind of thing seems to happen anytime one group maintains a power base for too long. After all, they get to pick the lawyers and the agency directors. They get to control the big projects and grant the resulting contracts. They get to set the budgets to reward or discipline as needed. What else can come of that kind of thing but corruption?

The real issue here is the fact that they are starting to use any tool at their disposal to supress dissent. An indication, I hope, that the pendulum has swung the full extent of its arc in this direction and will start to return towards the center.

Green Hornet|7.13.05 @ 1:52PM|#

This is not a new ploy. California Congressman David Dreier pulled the same stunt last year, filing a complaint with the FEC against KFI and Clear Channel radio hosts John and Ken, claiming that the John and Ken Show's Fire Dreier Campaign was an illegal in-kind contribution.

|7.13.05 @ 2:25PM|#

You have a right to free speech but not speech that costs more than $0.00

|7.13.05 @ 2:58PM|#

Never have i understood the logic of Buckley v. Valeo, equating "spending money" with "free speech."

A little thought experiment here: Is there any expression of your ideas, other than speaking out loud with your unamplified voice, that does not involve the expenditure of money? I can't think of any. Entering a comment on a blog requires a functioning computer (which costs money), and a functioning website (which also costs money). Posters and flyers? Money. And so forth.

Now, do you really think that the right to free speech is really nothing more than the right to conversation? If not, then I think you are well on your way to understanding why regulating the expenditure of money used to communicate your ideas is the regulation of the communication of your ideas, and an infringement on your right to free speech.

If there's two things the founding fathers managed not to conflate, it's speech and commerce.

Except that the founding fathers did not understand "commerce" to include "spending money."

|7.13.05 @ 3:03PM|#

That's it, no more opinions from me until people that I agree with pay up!

Ron Hardin|7.13.05 @ 3:41PM|#

The advocacy is the _show_ not an ad. You can tell them apart easily because the show draws audience, and an ad drives them away.

The _show_, which produces the audience in the first place, is what makes ads have value at all; and selling audience to advertisers is the business of the radio station.

So, in short, the radio station has a right to engage in its business, selling audience, and the courts can butt out.

Ron Hardin|7.13.05 @ 3:45PM|#

Incidentally John & Ken suck since they went political and celebrity trial all the time. The old whimsy was great, on KABC and KFI before that. Then they discovered that women listen and went template.

|7.13.05 @ 4:03PM|#

You have a right to free speech but not speech that costs more than $0.00

Since there are paid speakers, and as RC Dean points out, speaking in nearly any medium costs money, all speech is commerce. Speaking freely(financially) and silence also affect interstate commerce therefore are subject to regulation. Sigh


By the way, who's surprised that pols and lawyers are using campaign finance laws against regular citizen rather than the other way around?

|7.13.05 @ 4:59PM|#

David - nobody around here, I'll bet. It only helps those already in office.

|7.14.05 @ 2:11AM|#

If there's two things the founding fathers managed not to conflate, it's speech and commerce.

HA HA HA HA!!!

HA HA HA HA!!!

HA HA HA HA!!!

That has got to be one of the silliest things I've ever read here. The Founders were quite savvy in their combination of commerce and speech; just look at Benjamin Franklin's career as a printer for example, or at the very nature of the complaints of the colonists against the British government.

David,

Well, the First Amendment butts heads with the Commerce Clause in that instance then.

|7.14.05 @ 12:11PM|#

Hakluyt and RC Dean,

Look at the following examples, and after each, say either "speech" or "commercial":

Is buying an ice cream a speech act, or a commercial act? Writing a story about how much you liked the ice cream? Selling that story to a publisher? Buying a pen? Buying paper? Writing with that pen on that paper? Buying air time on tv? Composing a message to run during that air time?

Now... here we go: Transferring money to the general account of your business partner? Transferring money to the general account of your mortgage company? Transferring money to the general account of a policial candidate?

If for some reason, you said "speech" as to the last of these questions, ask yourself this: should it make any difference WHO you are transferring money to, or WHY? Commerce is commerce. It shouldn't be anybody's business WHY you are sending money someplace.

Thus, any attempt to restrict somebody's right to purchase pens, placards, tv air time, or campaigns, should be analyzed under Commercial principles (and the Constitution specifically provides for regulation of commerce).

Any attempt to restrict somebody's right to display particular words on those placards, or on those tv ads, should be analyzed under the first amendment.

The first amendment, you will agree, is different from the commerce clause. Thus, the founding fathers DID conceptually separate speech from commerce.

Separate, distinct concepts, with separate, distinctive sets of laws governing them.

At least they were, until Buckley made it the law of the land that the two were identical. Literally, identical.

Now what we have are people using this misguided idea to argue that when somebody speaks on behalf of a candidate, they are literally making a contribution to his campaign. If you're going to say that "when one spends money, one speaks" then one must also accept the absurd corollary, that "when one speaks, one spends money."

My point was: there was no need to conflate the ideas of spending and speaking, in order to preserve the unfettered right to make campaign contributions. By simply upholding the right to spend one's money as one chooses, the SCOTUS could have avoided this mess (the one in the article). It never had to be a speech issue at all.

Only the sentimental notion that "sending money to my favorite candidate is an expression of my thoughts" drives this conundrum. One's subjective feeling of glee at furthering the cause of a candidate does not make writing a check a speech act. It is a common misconception, now made into law. And the flip side of that misconception is now coming home to roost.

|7.14.05 @ 9:17PM|#

independent worm,

So are you saying that the first amendment protects only the political content of an expression or communication? So all other speach may be regulated as commerce? Who decides what is political? If I for some strange reason decided to picket a grocery store with signs telling them to lower their price of milk, how is that different from buying milk from a competitor, and thus giving them the same information, that I think their price is too high. Would you take the stand that both of these are commercial transactions? All commercial exchanges involve elements of information exchange... about price, quality, satisfaction, whatever.

To put it in a more purely political context, should I be permitted to organize a large rally opposing a gasoline tax and printing many signs opposing such a tax, but not allowed to support with money a candidate whose main issue is to overturn that very tax. Would I be allowed to drive to the next state over and fill my tank there if they had no such tax? Surely if I did this regularly, there would be plenty of information going to the legislature that the tax is being evaded in a legal commercial manner. Why should supporting the candidate be the only method of speech that is regulated and considered commerce?

I fear a world where we attempt to separate commerce and speech totally... What if congress passed a law outlawing all printing presses? Surely by your view this would be legal since it would be content neutral, and only affecting the commercial transaction of putting ink on paper (Or in your example, buying the pen and paper).

If I pay a vagrant to leave me alone and stop asking for spare change, is that commerce or speach? Or does it depend upon my motivations for giving him the money? What if I give him a place to stay? Am I bribing him? Why do you assume that paying a politician to help him win is the same as a bribe? Would not all such payments to advocacy groups be bribes? If I went insane and contributed to the Sierra Club is that not political speech? What about subscribing to Reason? Is all this purely commerce, sice money is changing hands?