The SCOTUSblog symposium on the McCutcheon case continued with postings on various aspects of the speech and government interests involved in the contribution/expenditure distinction. Justin Levitt argues that overall, in granting more protection to expenditures, the distinction correctly ranks the speech values. The independent expenditure is pure self-expression, the spender’s “unique” view; the contribution helps the candidate’s speech, and as he may speak as he pleases, the message he communicates and the “unique” view of the contributor may well diverge. Tamara Piety affirms the Court’s view that “the expressive interests of contributions are minimal” and that restrictions on them may be necessary to protect against loss of public confidence in government, to enhance the competitiveness of elections, and to focus governmental energies on voters and not contributors. What this analysis misses in following Buckley is the difference between an interest in speaking about politics, and an interest in effective political speech. The contribution and expenditure distinction is rooted in the first of these interests, and it is for this reason that the expenditure is the constitutionally privileged form of speech. In theBuckley view, the spender speaking just for herself may well treasure volume; the more said, the better, in order to drive the points home. By contrast, because the contributor supposedly speaks through another, “by proxy,” a strictly limited amount given still completes the expressive act of association and fully vindicates this more limited First Amendment interest. The contributor, however, in funding candidate speech is motivated by a deeper interest than Buckley accounts for—an interest in effective political speech.
The candidate converts the contributions received into the appeal or argument she believes best calculated to achieve victory. This does not mean that the “message” the contributor is funding will be cynically sacrificed to other goals or messages the supporter does not care for. The donor supporting a candidate committed to tax reform just depends on the candidate to develop a complex of messages, to build them into a persuasive case to the voters that will win out the end, resulting in victory for—a candidate who supports tax reform.
By ignoring this difference—by elevating the value of “direct” personal speech over the value of effective “proxy” political speech—the Court drains speech of much of its political content. The contributor does not fund speech to the candidate for the same reasons, to the end of self-expression, in the way that she funds her own. But the Court is mistaken to see this as a lesser speech interest; it is a categorically different one, defined by its political objective and context.