True Independent Speech

October 12, 2015
posted by Bob Bauer

As soon as the New York Times reported again this week on the concentrated wealth flowing through Super PACs, leading election law experts on the listserv began disputing what to make of the story.  Was the spending independent “speech” that the Constitution protects? Or was it no different than massive contributions not to be confused with direct speech and as such properly regulated?

The exchange over doctrine replayed familiar themes.  A key one: could the donors who have given to a Super PACs be fairly said to be engaged in their “own” speech?

Some say, “no.”  The same donor could say directly whatever she wished by finding an independent expenditure in her own name. Once she becomes a donor to a Super PAC, she is financing PAC speech and her First Amendment claim is weakened.  She is more a contributor than a spender: the speech is, as the Supreme Court put it in Buckley, “speech by proxy”—a sort of second-order advocacy.

The experts defending the Super PAC’s supporter’s speech claims points to decisions in Speechnow, buttressed by Citizens United.  The courts have concluded that a donor to an independent spending program shares in the speech protections afforded the independent spending.  She may do through a Super PAC—spend freely—what she could do on her own.  In each case, she is funding activities independent of the candidate and, under Buckley’s controversial terms, poses less of a risk of corrupt conduct.

This is indeed the law, but it is unpersuasive to those who think that these decisions were deeply erroneous. They appeal to common sense: how can the money these donors provide to others, for paid “proxy” speech, be mixed up with the expression of their own views?   The funders are not telling us what they think; they are not giving their views in their words. It is not their speech they are offering, only their money.

Resort to common sense may not be dispositive. It is not easy to define what constitutes, for these purposes, the purer form of speech that merits extensive protection.   We can imagine an individual independent spender who pays for print or media advertisements shaped to be effective rather than candid.  She is moved to support (or oppose) a candidate on grounds of issue Y, but she has reason to doubt that it would “work” as well with the targeted audience.  So, well advised, she pitches her case on the basis of issue X.  Perhaps she chooses in all her spending to omit any mention of Y.  In what sense is this candidate expressing her own views, or not?  And at what point do the views become any less her own if she shifts from X to Y because someone else—a savvy adviser—tells her it will be more persuasive?

The donors who pool resources through a PAC are generally not acting differently. They are unified in a judgment that the PAC is seeking the right outcome–the election or defeat of a particular candidate–and they are willing to delegate to others the strategic judgment about the most winning argument.  Like the individual spender, they do have a view and they are expressing it—about that candidate—and the only question, about which they are prepared to be flexible, is the best way to make the case.  Of course, if the PAC selects messages offensive to them, they will make themselves heard about this, and one response available to them is cutting off further support.

So there are two challenges here for those concerned to distinguish between the first and second orders of speech, between true expression and the “proxy” kind: distinguishing how the individual’s independent speech is necessarily more “personal” or “true” or “expressive” than that of the group’s, and explaining how the law could feasibly capture the nature of the distinction they would like to make.

This will be hard to do.  Buckley has required for years that the attempt be made, and by now, there are few, if any, fresh formulations in circulation and not many who remain to be persuaded.  And it is impossible to leave the subject without asking again if we are mischaracterizing the interest as one of just “speech.”

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