Senate Looks to Curtail First Amendment

Reacting to a series of recent Supreme Court decisions striking down provisions of federal and state campaign finance laws as violations of the Constitution’s free speech guarantee, liberals are increasingly pushing for a constitutional amendment to remove the First Amendment obstacle to broad campaign finance reform.

On Tuesday, such an amendment moved a small step closer to reality as the Senate Judiciary held a hearing on the issue. The hearing saw a heated debate between Democrat and Republican senators and their witnesses that, at times, got personal.

The debate led off with statements by Judiciary Chairman Patrick Leahy (D-VT) and Ranking Member Chuck Grassley (R-IA), Sens. Dick Durbin (D-IL), and Ted Cruz (R-TX), the Chair and Ranking Member of the Constitution Subcommittee. Comprising the first panel of witnesses were Majority Leader Harry Reid (D-NV) and Republican Minority Leader Mitch McConnell (R-KY). That was followed by a second panel of witnesses who were questioned by the committee’s members.

Chairman Leahy laid out the crux of the progressive argument for a campaign finance amendment, arguing that “through the Citizens United and McCutcheon cases… the Supreme Court has opened the floodgates to billionaires who are pouring vast amounts of unfettered and undisclosed dollars into political campaigns across the country.” Leahy explained that “because the Supreme Court based its rulings on a flawed [constitutional] interpretation … [o]nly a constitutional amendment can overturn the Supreme Court’s devastating campaign finance decisions.”

Leahy was referring to Citizens United v. FEC, the 2010 Supreme Court decision that struck down a federal pre-election ban on independent campaign expenditures by corporations and labor unions, and McCutcheon v. FEC, the Court’s 2014 decision striking down limits on the aggregate amount a donor can contribute to multiple candidates, PACs, and political parties.

Citizens United, in particular, has generated a lot of controversy due, in large part, to misunderstandings about the decision and its ramifications. Floyd Abrams, arguably the nation’s leading First Amendment lawyer and a man usually associated with liberal causes, tried to dispel those misunderstandings while testifying on the second panel. Concerning Sen. Leahy’s “floodgates” charge, Abrams explained that “Citizens United has not caused any massive rush of spending, corporate or otherwise,” adding that "the tidal wave of corporate money from enormous corporate entities predicted by the government in its Citizens United brief” never materialized.

Nonetheless, Democrats and their witnesses focused much of their ire during the hearing on the five center-right Justices responsible for Citizens United and other campaign finance decisions they don’t like. Most notably, Sen. Whitehouse (D-RI) denounced “five to four decisions driven by the right-wing activists” on the Court, accused them of going “berserk,” and compared Citizens United to Plessy v. Ferguson – the notorious 1896 Supreme Court decision upholding racial segregation – as examples of “really embarrassing moments” in the Court’s history.

Whitehouse alleged that those five to four decisions were of “massive benefit to the corporate interests that in many cases actually backed those judges' getting on the Court,” apparently alluding to unsupported charges from some on the left that the conservative Justices have ties to the Koch brothers.

The Koch brothers themselves were another frequent target during the hearing. For instance, Sen. Reid alleged that the brothers “must have 15 different phony organizations that they use to pump money into the system to hide who they really are.”

Republican senators pointed out that both the attack on the Koch Brothers and the constitutional amendment said to be necessitated by their undue influence on elections is part of a larger war on free speech by the left. Said Sen. Grassley, “Today, freedom of speech is threatened as it has not been in many decades. Too many people… want to punish, intimidate, and silence those with whom they disagree.” Grassley cited the firing of a Mozilla “corporate executive who opposed same sex marriage – the same position that President Obama held at that time.”

The focus of the Judiciary hearing was a specific campaign finance amendment proposed by Sen. Tom Udall (D-NM) that would give Congress and the states the power to “regulate the raising and spending of money” in support of or in opposition to candidates for federal or state office. Abrams noted that such an amendment, if enacted, would be unprecedented because “no amendment has ever been adopted limiting rights of the people that the Supreme Court has held were protected by the Bill of Rights in any of the first ten amendments,” including the First Amendment.

Nonetheless, the Udall amendment has 41 cosponsors in the Senate – all Democrats – and Majority Leader Reid promises that the Senate will vote on the amendment this year. In order to be enacted, the amendment would need a two-thirds majority in both houses of Congress and ratification by three quarters of the states.

The essence of the debate over the Udall amendment at Tuesday’s hearing is captured by this colorful exchange between Sen. Cruz and Sen. Chuck Schumer (D–NY):

Sen. Cruz: “This amendment here today if adopted would repeal the free speech protections of the First Amendment… When citizens hear that, they gasp… The senators who put their names to this should be embarrassed.”

Sen. Schumer: “I’ll tell you what makes the American people gasp is that a small handful of people can have huge effect on our political system… I’m embarrassed about how our system is distorted by literally now billions of dollars coming into this system undisclosed, unregulated, and unanswered… [Sen. Cruz’s] over-the-top rhetoric here makes it seem like if you support this amendment, you’re against the First Amendment. Well I want to ask you Sen. Cruz, are you against anti-child pornography laws?… We have always had balancing tests for every amendment.”

Sen. Cruz: “Sen. Schumer very kindly gave a lecture on civility and encouraged me not to go over the top, while he then in the same breath accused me of supporting child pornography.”

While that exchange became personal, Sen. Reid’s remarks were personal in another sense. They revealed that the issue of campaign finance reform is an emotional one for him. Reid recounted:

In 1998, I had a very close election with John Ensign. We each spent about ten million dollars… It was a bad situation. I felt so unclean… [Then McCain-Feingold was passed and] when I ran in 2004, it was like I had taken a bath and I felt so clean… And then comes 2010 [and Citizens United], back into the sewer.

During the Judiciary hearing, several of the Democrat senators and their witnesses repeated the often heard argument that campaign finance legislation like McCain-Feingold does not violate the First Amendment because “money is not speech.” Sen. Grassley addressed that argument by pointing out that almost any constitutional right could be denied by targeting the money needed to carry out that right. Said Grassley, “Suppose Congress passed limits on what people could spend on abortions or what doctors or hospitals could spend to perform them. What if Congress limited the amount of money people could spend on guns?”

Sen. Grassley went on to address specific problems with the Udall amendment, including the exception it makes for “freedom of the press.” Explaining that the amendment would mean that “Congress and the states could limit the speech of anyone except the corporations that control the media,” Grassley pointed out that “Freedom of the press has never been understood to give the media special constitutional rights denied to others.” Abrams hit the same note, explaining that “there is no distinction in principle between” what the Udall amendment would allow Congress to ban and “prevent[ing] a newspaper from repeatedly, even incessantly, praising or denouncing any candidate for public office.”

Grassley also noted that the Udall amendment is so broad that “Congress could pass a law limiting expenditures by Democrats but not by Republicans, by opponents of Obamacare but not by supporters” or vice versa. Referring to similar constitutional amendments proposed in 1997 and 2001, Sen. McConnell said, “As bad as those proposals were, they at least limited the government’s power to setting ‘reasonable limits’ on speech.”

Regardless of such limits, Sen. McConnell opposes any sort of campaign finance amendment, in part because it would amount to an incumbent protection plan. McConnell explains that such an amendment “would empower incumbent politicians in Congress and in the states to write the rules on who gets to speak and who doesn’t… Those in power [could] use this extraordinary authority to suppress speech that is critical of them.”

At the same time, McConnell is not worried that such an amendment will be enacted anytime in the near future. Says McConnell, “everyone on this Committee knows this proposal will never pass Congress. This is a political exercise. The goal here is to stir up one party’s political base so they’ll show up in November.”

The bad news for opponents of a campaign finance amendment is that, as Sen. Grassley noted at the hearing, “an amendment soon may not be needed at all.” The reason, says Grassley, is that “Four justices right now would allow core political speech to be restricted. Were a fifth justice with this view to be appointed, there would be no need to amend the Constitution to cut back on freedom.”

Mr. Levey is a constitutional law attorney and president of the Committee for Justice, which submitted an amicus brief in McCutcheon v. FEC. Follow him on Twitter at @Curt_Levey.


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