Mistaken Identity: Unveiling the Property Characteristics of Political Money

This Article argues that money contributed to and spent on political campaigns ('political money") possesses many of the traits that explain judicial respect for regulation of property, and that courts reviewing restrictions on political money should consider doctrines associated with the Fifth and Fourteenth Amendment Property Clauses. As evidenced by the different degrees of respect afforded to regulations of property and speech, judicial treatment of a particular liberty interest can be explained by the presence and particular posturing of distinct functional issues such as distrust, scarcity, distribution, and interference with others' interests. Campaign finance jurisprudence, however, has categorized political money as warranting exacting judicial protection under the First Amendment, and this formalism causes courts to overlook the intersection of two different constitutional doctrines in the political money context. Instead, courts should glean lessons from both property and speech doctrines to determine the appropriate judicial approach in reviewing regulations of political money.