50 years ago, the Supreme Court concluded that “money is speech.” In a decision that would eventually lead to Citizens United, billions in dark money flooding elections and the auctioning off of national policy, the Court decided in Buckley v. Valeo that spending money on speech was indistinguishable from the speech itself, and the Constitution’s protection of the latter meant the government could not target the evils of the former. In the 50 years since, however, the right to “speak” through campaign contributions is no longer considered just the equal to actual speech. In fact, it has taken privilege over it. 

Although subject to widespread criticism, Buckley’s defenders hail the decision for “sav[ing] democracy.” The decision—and the numerous subsequent decisions that have granted constitutional protection to campaign spending—have led to more than $100 billion in election spending since it came down, disproportionately funded by billionaires, with more than $3 billion coming from untraceable sources. Those numbers accelerate with each election cycle. 

To Buckley’s defenders, this spending represents enthusiastic expression that should be treated like any other form of civic engagement and welcomed as such. Of course, other forms of engagement like pamphlet writing or public protest only achieve policy results if they effectively persuade an audience of the justice of the cause. The influence campaign contributions exert, on the other hand, is separate and distinct from the persuasive force, if any, exerted by any campaign ad for which those funds eventually pay. Rather, campaign contributions exert influence and impact policy well before those funds are converted into any type of speech. President Trump changed his views on crypto, for example, after accepting $ 4 million in campaign contributions in bitcoin, without any of that money being spent to create pro-crypto messaging. Similarly, although none of Trump’s campaign ads advocated in favor of pardons for financial criminals, the contributions from those individuals were highly influential in securing them.   

Nevertheless, these defenders argue, regulating campaign contributions would undermine the First Amendment—if the government can regulate the transfer of money, couldn’t it simply outlaw The New York Times spending money to print newspapers, they ask—so protecting contributions is “essential to protecting the First Amendment right to free speech.” Yet far from proving essential to guarding the free speech rights of others, the decision has done nothing to safeguard those rights, which now find themselves under greater threat than since Buckley came down.  

“If you’re among the millionaires and billionaires who primarily express themselves through campaign spending, the 50 years since Buckley may have indeed represented a high-water mark of unfettered expression. But for those whose speech is not primarily through their wallet, free speech rights are at an ebb. ”

Under Buckley, Elon Musk may have the constitutional right to spend more than a quarter-of-a-billion dollars to support his desired presidential candidate—and then see his beneficiary enact his idea for a cost-cutting agency. But there is no longer certainty that the Constitution protects the federal workers that agency later fired or the beneficiaries that agency abruptly cut off from food and medicine and who want to publicly criticize the billionaire without risk of ruinous defamation suits, or protects those fired workers or cut-off beneficiaries who want to take to the streets to protest without risk of being seized or even worse for doing so. 

The oil industry may have a constitutional right under Buckley to contribute a quarter-billion to support a presidential candidate—with the reward of possible advance knowledge of secret military operations in Venezuela and opportunities for windfalls from the operation—but there is no longer certainty that the Constitution protects the citizens of that country here on student visas who want to protest or criticize those actions, or the right of the media to accurately report on the president’s actions and statements.

Buckley may also provide a constitutional right to contribute over $17 million to a candidate with the reward of an appointment as the Secretary of Education, but it is no longer certain that the Constitution protects the right to access books at the library, the right of a teacher (or, for that matter, a tv comedian) to criticize a public figure or the right to teach Plato in a philosophy class. 

If you’re among the millionaires and billionaires who primarily express themselves through campaign spending, the 50 years since Buckley may have indeed represented a high-water mark of unfettered expression. But for those whose speech is not primarily through their wallet, free speech rights are at an ebb. 

Unfortunately, there’s no indication Buckley is going to come to the aid of anyone who wishes to speak through, well, speech. Rather, it looks like its advocates plan to use Buckley and its successors to censor their critics and further diminish their First Amendment rights. 

One of the last remaining bulwarks of campaign finance law is the obligation to disclose to the public those who spend significant sums, and thus those who could benefit from “post-election special favors.” That disclosure serves to facilitate speech among the public—speech about what those disclosures reveal about candidates, what impact if any they should have on elections, and whether any reaction to the funder is appropriate. Yet Buckley’s backers are claiming that this free speech by everyone else that this disclosure facilitates actually violates the First Amendment rights of contributors, who would apparently “speak” so much more, if only they could avoid criticism for doing so. These donors’ critics, deprived of the facts on which to base their speech, would then be hampered in their ability to make effective and persuasive arguments. And when combined with the risk of ruinous defamation suits funded by big money backers that these critics would face—a risk these critics, who can’t afford to make multi-million contributions, also likely can’t afford to defend against—these critics could be silenced entirely.    

Although Buckley was based on the conflation of election financing with speech and is defended as essential to protecting all speech, the fundamental difference between the two has meant these “free speech” rights have diverged, with the right to spend now risking swallowing up the right to speak in any other way. Buckley’s advocates perhaps foresaw this outcome when they asserted that not all speech is equal, but that spending vast sums, often anonymously, is really the only “effective speech.” By that logic, actual free speech is a privilege available only to a select, wealthy few. Unfortunately, with the retreat of free speech rights for any speech other than a fistful of cash, Buckley’s declaration that “money is speech” is quickly becoming “money is the only speech.”