Why Can You Buy a Government But You Can’t Pay for Sex?

A federal court of appeals just rejected a case challenging prostitution laws as unconstitutional.

As the court explained, the constitutional right to make choices about intimate conduct does not extend to paid transactions. Perhaps unexpectedly, the case also helps explain what’s wrong with the way the Supreme Court thinks about money in politics.

For much of American history, many states banned a wide range of private sexual practices. But in the 1960s, the Supreme Court began to recognize the right to individual liberty in this sphere.

In the 1966 Griswold v. Connecticut decision, the Court struck down a state ban on birth control and recognized a right of “marital privacy.” A few years later, the Court extended that right to unmarried people.

Over time, and in tandem with broader social developments, the Court continued to invalidate laws intruding too far into the bedroom. And in the landmark 2003 Lawrence v. Texas decision, the Supreme Court struck down state laws banning same-sex sexual activity.

As Justice Kennedy explained in his opinion for the Court, “Liberty presumes an autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct.”

Fast forward to 2015. An organization called Erotic Service Provider Legal, Education & Research Project challenged a California law that bans prostitution—sexual activity for money.

The plaintiffs argued that, among other things, this ban violates the right to sexual privacy recognized in Griswold and Lawrence . As they argued, the Supreme Court’s precedent “guarantees to consenting adults a fundamental liberty interest to engage in private sexual activity,” and the government “cannot wholly outlaw a commercial exchange related to the exercise of such a liberty interest.”

GettyImages-51738424 A man stops to talk to a female police officer posing as a prostitute on Holt Boulevard, known to sex workers throughout southern California as 'the track', during a major prostitution sting operation November 12, 2004 in Pomona, California. Approximately 60 to 80 men are arrested each night during the sting operations. Cars driven by the arrested men are seized and become city property until a $1000 fine is paid. Each vehicle is then labeled with a large window sticker stating that the car was 'seized for solicitation of prostitution' and the photos of the men appear in a full-page ad in the local newspaper. David McNew/Getty

The trial court disagreed, and the plaintiffs appealed. At the oral argument, one of the judges on the panel asked the state why it should be “illegal to sell something that it’s legal to give away.” But in the end, the court rejected the challenge.

As the court explained, the Supreme Court had never held the right to sexual intimacy to extend to prostitution, and anyway the prohibition served a legitimate government interest—reducing trafficking in, and violence against, women and children.

What does this have to do with political contributions?

Let’s get two flippant answers out of the way first. This is not about political sex scandals. And it’s not just about the way people often speak of politicians “prostituting” themselves for contributions. (Perhaps the most memorable phrasing was that of an elected justice of the Ohio Supreme Court who quipped, “I never felt so much like a hooker down by the bus station in any race I’ve ever been in as I did in a judicial race.”).

The real issue is deeper: it’s that the entire way the Supreme Court thinks about money in politics is wrong.

In 1976, the Supreme Court considered limits on political campaign contributions for the first time in the case of Buckley v. Valeo . One of the threshold questions was whether freedom of speech was affected by laws limiting how much money could be given to, or spent on, political campaigns.

The Court decided that any restrictions on money should be treated as restrictions on speech . After all, the Court reasoned, political “speech” requires money in order to be communicated effectively. Since money facilitates speech, giving and spending money should be treated as themselves expressive activities, and limits on giving and spending money should be treated as limits 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. You have the right to donate your organs, but not to sell them. 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 X automatically includes the right to spend money on X . It depends on X . And we need a more nuanced analysis of any “right” to spend money in politics as distinct from freedom of speech. That analysis could include, for example, how vast disparities in wealth mean that big money in politics undermines the constitutional principle of “one person, one vote.”

Buckley has been the law for over 40 years. Without Buckley and its flawed central premise, we wouldn’t have had Citizens United , or super PACs, or the public’s broad worry that politics is bought and sold.

But, as the Ninth Circuit reaffirmed, prostitution is not the same as private sexual conduct. And, as Professor Hellman reminds us, “Money talks but it isn’t speech.”

Ron Fein is the Legal Director of Free Speech For People.