Professor Erwin Chemerinsky has succinctly delineated the options available to the Court in McCutcheon v. Federal Election Commission. Erwin Chemerinsky, Symposium: The distinction between contribution limits and expenditure limits, SCOTUSblog (Aug. 12, 2013, 2:42 PM), He then notes with regret one voice missing from the current Court’s jurisprudential chorus: the voice for reversing Buckley v. Valeo’s special protections for “expenditures,” once supplied by John Paul Stevens. Justice Stevens famously called in Nixon v. Shrink Missouri PAC, 528 U.S. 377 (2000) for acceptance of the “simple point” that “money is property; it is not speech.” Id. at 398.

The contribution/expenditure distinction is indeed a muddle, but not because both contributions and expenditures are more like dispositions of property than modes of speech. Each serves a speech interest, but not in the relatively mechanical way described by the Buckley Court. So neither explains how the Court after Buckley has been moved to decide the hard cases.

The contrast between what the Court has said and what it does—between the speech interests proclaimed and the ones actually guiding its jurisprudence—is well illustrated by Stevens’ Nixon concurrence. There he distinguishes his “money is property” proposition from the more traditional analysis he adopted in Meyer v. Grant. 486 U.S. 414 (1988). In that case, the court struck down a Colorado ban on the use of paid circulators in initiative drives. Holding fast to Buckley, Stevens concluded that the ban in Meyer was an impermissible expenditure limitation—a restriction on “the total quantum of speech” that would shrink the “number of voices who will convey [the] message and the hours they can speak, and, therefore, limit the size of the audience they can reach.” Id. at 422-423. And he rejected any suggestion that these limits would serve the interest of equality, citing Buckley for the proposition that any such view was “wholly foreign” to the First Amendment. Id. at 426, n.7, citing Buckley v. Valeo, 424 U.S. 1, 48-49.

Now, in Nixon, he needed to show how Meyer could be consistent with his new equation of money with property. Stevens’ answer was that the state was justified in protecting the petition expenditures because failure to do so “entirely forecloses a channel of communication.” Nixon at 398, n*. This seems doubtful: unpaid circulators were available, and the initiative sponsors could spend freely to advertise their cause. In fact, Stevens did not base the constitutional interest in Meyer on preserving speech that otherwise would not occur at all. His concern was to protect a specific kind of speech—”direct one-on-one communication” between petition circulators and voters. Meyer at 424.

The expressive interest involved in these door to door conversations involved not merely “a desire for political change” but, in addition and most fundamentally, “a discussion of the merits of the proposed change.” Id. at 421. “In almost every case,” he wrote, the contact between the circulator and the voter will include “an explanation of the nature of the proposal and why its advocates support it.” Id. This was a specific brand of communication—“interactive communication” that depended on money in achieving adequate scale and effectiveness. Id. at 422. Compare these personal, “interactive” communications with the one most commonly cited by critics of independent expenditures—expensive TV advertising. It is doubtful that Stevens would have mustered much sympathy for that.

What Meyer suggests, as do other cases in the campaign finance line, is that the expenditure “speech interest” is compelling in certain, inadequately articulated circumstances. In making his case that money is property, Stevens did not renounce his opinion in Meyer, which he could have done; he sought to explain it away but could not do so successfully. His problem was that the standard contribution/expenditure construction did not give him the room—not in Meyer when explaining the nature of the protected speech interest, and not in Nixon when attempting to show that Meyer could be reconciled with a “money is property” shift in doctrine.

Stevens’ decision in Meyer, and his attempt to distinguish it in Nixon, shows how the Court’s grasp of vital “speech” interests may have little to do with the orthodox formulation of the contribution/expenditure distinction. Nonetheless, its decisions continue to be explained, largely unpersuasively, in those terms. This is a major challenge in any reconsideration of Buckley. Little progress can be expected from clinging to the same analytical framework but simply coming out another way on the question of whether “contributions” and “expenditures” should be treated differently, or the same. What is called for is a realignment of the doctrine with the deeper intuitions at work in the Court’s decisions.

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