Speech and Money Followup: Action-Effect distinctions lost on Supreme Court

Basically, in Arizona Free Enterprise Club's Freedome Club PAC v. Bennett the Supreme Court majority opinion makes a truly disturbing error.  They argue that the right to free speech is not one of action (you can say what you want) but rather efficacy (actions limiting the efficacy of your speech towards its goals are apparently problematic).  In other words, not by censorship, but merely by providing content-neutral funding for competing opinions, the government can be considered to be impeding free speech.  Elena Kagan hits the nail on the head in her dissenting opinion (second half of the linked opinion).  Here's her most terse description of the perceived problem.

According to the Court, the
special problem here lies in Arizona’s matching funds
mechanism, which the majority claims imposes a “sub-
stantia[l] burde[n]” on a privately funded candidate’s
speech. Ante, at 2. Sometimes, the majority suggests that
this “burden” lies in the way the mechanism “ ‘diminish[es]
the effectiveness’ ” of the privately funded candidate’s
expression by enabling his opponent to respond. Ante, at
10 (quoting Davis v. Federal Election Comm’n, 554 U. S.
724, 736 (2008)); see ante, at 21–22. At other times, the
majority indicates that the “burden” resides in the deter-
rent effect of the mechanism: The privately funded candi-
date “might not spend money” because doing so will trig-
ger matching funds. Ante, at 20. Either way, the majority
is wrong to see a substantial burden on expression.

Just a quick gloss: the worry is that the possibility that their opponents might be able to say something about their speech is what the Majority worries will discourage that speech.  And here is her most effective analysis of the error of the Majority Opinion.

Most important, and as just suggested, the very notion
that additional speech constitutes a “burden” is odd and
unsettling. Here is a simple fact: Arizona imposes nothing
remotely resembling a coercive penalty on privately
funded candidates. The State does not jail them, fine
them, or subject them to any kind of lesser disability. (So
the majority’s analogies to a fine on speech, ante, at 19, 28,
are inapposite.) The only “burden” in this case comes from
the grant of a subsidy to another person, and the opportu-
nity that subsidy allows for responsive speech. But that
means the majority cannot get out from under our subsidy
precedents. Once again: We have never, not once, under-
stood a viewpoint-neutral subsidy given to one speaker to
constitute a First Amendment burden on another. (And
that is so even when the subsidy is not open to all, as it is
here.) Yet in this case, the majority says that the prospect
of more speech—responsive speech, competitive speech,
the kind of speech that drives public debate—counts as a
constitutional injury. That concept, for all the reasons
previously given, is “wholly foreign to the First Amend-
ment.” Buckley, 424 U. S., at 49.

Money as Speech

I typically agree with most of what Ygelsias has to say, but this post really rubbed me the wrong way.  Here's the most relevant section:

My starting point is that the “money isn’t speech” mantra clearly has some real problems with it. [...]

The issue, most broadly, is that money is a big help when communicating with the public. Restricting a person’s ability to obtain money for the purpose of communicating with the public is a means of restricting that person’s ability to communicate. It is true that this means that people with more money have a disproportionate impact on the public dialogue just as they have disproportionate access to big houses and fancy dinner and quality medical care. And you don’t have to be happy about any of those facts. But they’re part of a general question of inequality and economic justice.

This seems extraordinarily perverse to me.  First of all, it turns the argument on its head.  It's patently not the case that people would be restricted from attempting to get monetary support for their communication.  Most campaign finance reform proposals allow you to do so by getting a lot of people to give you money, and they certainly don't prevent you from making money in other ways in order to fund your outreach.  They prevent DONORS from unfairly influencing the platforms of politicians by virtue of their wealth.  Furthermore, as far as restrictions on free speech go, we already have some strong ones on advertisements, which would seem to fit into the same sort of category as ads for politicians (but don't).

I suppose one could argue that having more money is kind of like being photogenic or having a good prose style - useful traits that are inherently differently distributed and contribute significantly to communication efficacy.  It seems unreasonable, for instance, to say that every blogger should have to write at a 4rd grade reading level in order to even the influence playing field.  If you really believe that money and eloquence have no significant moral difference, then I guess you can buy Yglesias' argument.

But here's the thing.  As Tom Lee points out, the primary reason that money is important in speech is for purchasing network media time.  Network media time (as distinct from internet media time) is, by its nature, finite and one person's purchase necessarily crowds out another's.  This is patently not true for things like eloquence and good looks.  So, since tv time is zero-sum, restricting the ability of one person to purchase a lot of it doesn't restrict speech in general, but rather prevents a private individual from purchasing away the power of speech from the rest of the field.  From that lens (which I think is more sensible) we can see campaign finance reform as promoting, not limiting, free speech.  Also, since we're talking about media companies in particular, it might be reasonable to talk about limiting the company's speech, rather than the pundits.   In other words, we could put upper bounds on the amount of stuff they can broadcast from a single funding source, or something along those lines.  Media providers are already subject to many restrictions, so I can't think of a free speech argument against this, though I imagine implementation of such a law would suffer from serious practical and political difficulties.