More on the McConnell opinion, and the outline of why authors should care…

Professor Rick Hasen's comments on the opinion bear considerable scrutiny. Professor Hasen knows more about election law than do I, and does a nice job putting things in the election context. The real problem, though—one that the Court today evaded—is the continuing vitality of Buckley v. Valeo. (I have not linked to the opinion because both of the ones available online without charge that I have found have substantial errors in them.)

In two words, the holding of Buckley is that "money talks." Its reasoning is quite simple, if a more than a bit strained. Buckley concerned restrictions on "soft money" contributions and expenditures, just as did McConnell (today's decision). In Buckley, the Court said that some restrictions on "soft money" (general donations to political parties) could stand, but that restrictions on expenditures could not. Essentially, this treats money actually expended on a campaign as the equivalent of symbolic speech. If wearing a jacket that says "fuck the draft" in a courtroom is acceptable as symbolic speech (Cohen v. California, 403 U.S. 15, 16 (1971)), and if burning the US flag is acceptable as symbolic speech (Texas v. Johnson, 491 U.S. 397 (1989)), then this seems logical, doesn't it?

Well, no. The distinction between these acts of symbolic speech and expenditure or contribution of money for political campaigns is simple: money doesn't talk. That is, the money by itself does not have any message, while the jacket and the burnt flag do. (Aside: I think both Cohen and Johnson were correctly decided.) This is consistent with the "government need not pay for speech with which it disagrees, even speech on constitutional rights" cases, such as NEA v. Finley, 524 U.S. 569 (1998) and the notorious Rust v. Sullivan, 500 U.S. 173 (1991), although religion seems to get a free pass (Rosenberger v. University of Virginia, 515 U.S. 819 (1995). But we're getting a bit far afield here.

So, then, why does this matter to authors? Two reasons are obvious. First, how would we treat an exhorbitant advance paid to a political candidate (such as, say, $6 million to a candidate for Senator in New York)? Is an advance that is well above the reasonable market value of the work—or payment for an article that is well above the reasonable market value for the article—possibly a "soft money" contribution that might run afoul of some regulation? Quite possibly; and when it's not just to a candidate, but to a pundit acting as a one-person PAC, things get even more tangled. Second, does the upholding of restrictions against "attack ads" during the two weeks prior to the election mean that a book on an important issue cannot be published during that window, even if the book had been written and entered the editorial process before the most "vulnerable" candidate had even declared for office? This latter question is quite troubling; and I think that the answer is yes, such a publication schedule would at least invite scrutiny under McConnell—and, given that book publishers are often controlled by some of the same parties that Congress was seeking to control as potential corrupting influences…