Ari Weisbard has written this student comment for the Yale Law Journal. It begins: “This Comment suggests a new constitutional approach to the regulation of political expenditures. The approach pushes beyond the question of whether political expenditures are more like ‘speech’ or more like ‘property’ and instead focuses on which types of expenditures fit into each category. Some expenditures, but not all, are necessary to create speech. These ‘speech-enabling’ expenditures cannot be meaningfully disentangled from the communication they make possible. Other expenditures, however, provide
something of value aside from the speech itself as an incentive for individuals to listen to the speech. The classic example is expenditures on advertising, which reach listeners or viewers because they wish to consume the content with which the advertising is packaged. These ‘audience-buying’ expenditures function as property and consequently deserve less protection. Courts should uphold campaign finance regulations that are closely tailored to protecting speech-enabling expenditures while regulating audience-buying expenditures in order to enhance political equality.”