Justice Thomas reveals elaborate reductio of “money = speech”
[The quotations attributed below to Justice Thomas are genuine (though not the picture caption, obviously). Thanks to Alex Guerrero for the quip which inspired this post and became its title.]
This week’s ruling in McCutcheon v. Federal Election Commission confirms what many have suspected since 2010’s Citizens United: Justice Clarence Thomas is engaged in an elaborate reductio of the idea that money is speech.
In Citizens United Justice Thomas argued that if political expenditures by corporations and unions are speech (as claimed by the Court), then existing disclosure requirements are unconstitutional. Such requirements, Thomas wrote, would violate the right to anonymous speech.
But Thomas’s position on the matter was too extreme even for Justices Roberts, Scalia, and Alito, leading some to suggest that Thomas had unknowingly produced a reductio ad absurdum of the idea that corporate political expenditures are speech. Others responded that Thomas was well aware of the reductio he had crafted, and the proper interpretation of his intentions remained controversial.
That controversy has all but ended thanks to McCutcheon. In a five-to-four decision, the Court struck down limits on the aggregate amount a single donor can give to candidates and parties at the national level. While there remain limits on the amount that can be donated to an individual candidate, donors will now be permitted to give to as many candidates as they desire. Chief Justice Roberts wrote the opinion for a four-member plurality, joined by Justices Scalia, Alito, and Kennedy.
Justice Thomas issued a separate opinion concurring with the judgment of the plurality but arguing that they erred by treating aggregate contribution limits differently than limits on contributions to individual candidates. If “the plurality’s analysis” is consistently applied, Thomas writes, “limiting the amount of money a person may give to a candidate does impose a direct restraint on his political communication” . In other words, if the analysis of Justices Roberts, Alito, Scalia, and Kennedy is correct, then it’s not just aggregate contribution limits that are unconstitutional: limits on contributions to individual candidates are unconstitutional as well. Observers were quick to point out, however, that essentially everyone — including the Court’s ruling plurality — rejects the consequent of that conditional.
Similarly, Justice Thomas argues that if expenditures by candidates deserve First Amendment protection, then so do contributions to candidates. He writes that expenditures and contributions are “two sides of the same…coin” and that the Court’s “efforts to distinguish the two have produced mere ‘word games’ rather than any cognizable principle of constitutional law” . Several prominent advocates of publicly funded elections promptly expressed their support for Thomas’s reasoning. “I couldn’t agree more,” said Adonal Foyle, founder of Democracy Matters. “Bring on the expenditure limits!”
While the opinion issued this week by Justice Thomas is generally regarded as having revealed his satirical intent, the message seems to be lost on some. Bradley A. Smith, chairman of the Center for Competitive Politics, applauded Justice’s Thomas’s “attack” on individual contribution limits. “Money is speech, which is why there can’t be contribution limits,” said Smith. “Similarly, shouting is speech, which is why you can walk into a crowded theater and shout ‘Fire!'”