Dan Backer, the lead lawyer behind a landmark case that further opened the campaign finance floodgates, conceded in an interview with HuffPost Live that money is not, in fact, speech.
The effort to repeal laws regulating the role that moneyed interests can play in elections has long been animated by the notion that any such restriction is a violation of the First Amendment's right of free speech.
Indeed, in his first brief comment to HuffPost Live, Backer, who counseled Shaun McCutcheon, referenced speech no fewer than four times in explaining the Supreme Court's rationale in its McCutcheon v. Federal Election Commission decision striking down certain campaign contribution limits last week:
"I don't understand why anyone should have their free speech limited to help somebody else feel like they can speak more. The Constitution does not envision the idea of, as the court said, 'weakening the rights of some and the speech of some in order to enhance or promote the speech of others.'"
But the argument has a clear weakness. HuffPost asked Backer why, if money is speech, bribery is illegal. Shouldn't bribery be considered an expression of one's First Amendment rights?
Money quickly transformed in Backer's reasoning. "The court did not say, and really neither does any serious commentator, that money is speech. Money is not speech. Money is a necessary tool to engage in political speech and political association," he said.
If money isn't speech, HuffPost asked, then why is it out of line for the government to regulate campaign donations?
"It's not out of line. It's allowed to regulate money in elections in order to prevent quid pro quo corruption," Backer answered, referencing the narrow definition of corruption cited by the Supreme Court in the McCutcheon decision.