Speech and Markets

Deborah Hellman, Money Talks but it Isn't Speech, 95 Minn. L. Rev. – (forthcoming 2011), available at SSRN. Louis Michael Seidman Is there anything new to say about the constitutionality of campaign finance regulation? Well, actually, there is, and Deborah Hellman says it in her fine new article "Money Talks but It Isn't Speech." The significance of Hellman's article extends beyond the vexed yet tired issue of campaign finance, however. Her work is an important intervention in a central – perhaps the central – problem in modern constitutional law. To understand what that problem is, we need a brief and necessarily crude overview of twentieth century constitutional history. During the first third of the century, civil liberty rights, to the extent that they existed at all, were closely linked to property and market rights. The reigning ideology treated both as within a private sphere. Liberty was defined as the absence of government intervention, and, at least in principle, there was no distinction between free markets in goods and free markets in speech, both of which were judicially protected by limits on the political branches. Continue reading "Speech and Markets"

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