What the Ninth Circuit’s Prostitution Decision Can Teach Us About Money in Politics

A federal court of appeals just rejected a case challenging prostitution laws as unconstitutional. A Newsweek piece published this Saturday—as it happens, the anniversary of oral argument in the case that created super PACs—explained how this decision, perhaps unexpectedly, shows what’s wrong with the way the Supreme Court thinks about money in politics.

The analysis draws on scholarship by Professor Deborah Hellman, an invitee to our 2014 symposium at Harvard Law School on Advancing a New Jurisprudence for American Self-Government and DemocracyAs the Newsweek piece explains:

In 1976, the Supreme Court considered limits on political campaign contributions for the first time in the case of Buckley v. Valeo … The Court decided that any restrictions on money should be treated as restrictions on speech. …

But as law professor Deborah Hellman notes, just because you have a constitutional right to do something doesn’t necessarily mean you have a constitutional right to spend money to do that same thing. You have the right to vote, but not to sell your vote, or buy someone else’s. … And—as the Ninth Circuit confirmed—the right to intimate sexual conduct does not include the right to buy or sell that intimate sexual conduct.

It simply isn’t the case that the right to do automatically includes the right to spend money on X. … And, as Professor Hellman reminds us, “Money talks but it isn’t speech.”

To read the full piece on Newsweek, click here.

 

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