In his recently published criticism of Stanley Fish, Russell Jacoby returns to Fish's position (in Jacoby’s words) that “there are no abstract principles outside of society and history.” “Making It,” The New Republic (September 2, 2013 at 36). This position, Jacoby reminds the reader, accounts for Fish’s insistence “that there’s no such thing as free speech”—that speech has no worth independent of context and any value it is assigned is the outcome of a political struggle. See, e.g. Stanley Fish, There’s No Such Thing As Free Speech (1994) at 102. (“Free speech is not independent value but a political prize….”)

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 the Buckley 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.

Professor Erwin Chemerinsky has succinctly delineated the options available to the Court in McCutcheon v. Federal Election Commission. Erwin Chemerinsky, Symposium: The distinction between contribution limits and expenditure limits, SCOTUSblog (Aug. 12, 2013, 2:42 PM), http://www.scotusblog.com/2013/08/symposium-the-distinction-between-contribution-limits-and-expenditure-limits/. He then notes with regret one voice missing from the current Court’s jurisprudential chorus: the voice for reversing Buckley v. Valeo’s special protections for “expenditures,” once supplied by John Paul Stevens. Justice Stevens famously called in Nixon v. Shrink Missouri PAC, 528 U.S. 377 (2000) for acceptance of the "simple point” that “money is property; it is not speech.” Id. at 398.

Campaign finance jurisprudence is caught in the crosscurrents of formal doctrine and less clearly articulated judgments about the interests it is crafted to serve. One such judgment has to do with the “little guy”: the pamphleteer or small-scale political enterprise that raises and spends money to influence elections but whose activities have little or no corrupt potential and should not come within the regulatory grasp of the state. The Court has gone to considerable and inventive lengths to spare the little guy the dead weight of the rulebook, See, e.g. McIntyre v. Ohio Elections Comm’n, 514 U.S. 334 (1995) and FEC v. Massachusetts Citizens for Life, 479 U.S. 238 (1986) and it may have occasion in the near future to do more of the same. Because the doctrine is only roughly fitted to the purpose, the protection of the “little guy” has served the “big guys” well; an approach cobbled together on the fly for the smaller, more local enterprise has shielded the major political spenders.

Replying to a posting here, David Gans has responded with a confident defense of the brief he co-authored on behalf of Larry Lessig in the McCutcheon case. On the question of whether the aggregate limit is a contribution or expenditure limit, he has no doubt: it is an “easy” one, he writes. But how easy is it?