FAN 13.1 (First Amendment News) — Justice Stevens’ Testimony to Senate Rules Committee re Proposed Campaign Finance Constitutional Amendment

Statement of Justice John Paul Stevens (Ret.)

April 30, 2014

Senator King, Chairman Schumer, Ranking Member Roberts, and distinguished Members of this Committee, thank you for the opportunity to appear before you today to discuss the important issue of campaign finance.

justice-stevens-235x300When I last appeared before this body in December 1975 my confirmation hearing stretched over three days. Today I shall spend only a few minutes making five brief points:

First, campaign finance is not a partisan issue. For years the Court’s campaign finance jurisprudence has been incorrectly predicated on the assumption that avoiding corruption or the appearance of corruption is the only justification for regulating campaign speech and the financing of political campaigns. That is quite wrong. We can safely assume that all of our candidates for public office are law-abiding citizens and that our laws against bribery provide an adequate protection against misconduct in office. It is fundamentally wrong to assume that preventing corruption is the only justification for laws limiting the First Amendment rights of candidates and their supporters. Elections are contests between rival candidates for public office. Like rules that govern athletic contests or adversary litigation, those rules should create a level playing field. The interest in creating a level playing field justifies regulation of campaign speech that does not apply to speech about general issues that is not designed to affect the outcome of elections. The rules should give rival candidates – irrespective of their party and incumbency status – an equal opportunity to persuade citizens to vote for them. Just as procedures in contested litigation regulate speech in order to give adversary parties a fair and equal opportunity to persuade the decision-maker to rule in their favor, rules regulating political campaigns should have the same objective. In elections, the decision-makers are voters, not judges or jurors, but that does not change the imperative for equality of opportunity.

Second, all elected officials would lead happier lives and be better able to perform their public responsibilities if they did not have to spend so much time raising money.

Third, rules limiting campaign contributions and expenditures should recognize the distinction between money provided by their constituents and money provided by non-voters, such as corporations and people living in other jurisdictions. An important recent opinion written by Judge Brett Kavanaugh of the D.C. Circuit and summarily affirmed by the Supreme Court, Bluman v.Federal Election Commission [800 F. Supp. 2d 281 (D.D.C. 2011), aff’d, 132 S. Ct 1087 (Jan. 9, 2012)] upheld the constitutionality of the federal statute that prohibits foreign citizens from spending money to support or oppose candidates for federal office. While the federal interest in preventing foreigners from taking part in elections in this country justified the financial regulation, it placed no limit on Canadians’ freedom to speak about issues of general interest. During World War II, the reasoning behind the statute would have prohibited Japanese agents from spending money opposing the re-election of FDR but would not have limited their ability to broadcast propaganda to our troops. Similar reasoning would justify the State of Michigan placing restrictions on campaign expenditures made by residents of Wisconsin or Indiana without curtailing their speech about general issues. Voters’ fundamental right to participate in electing their own political leaders is far more compelling than the right of non-voters such as corporations and non- residents to support or oppose candidates for public office. The Bluman case illustrates that the interest in protecting campaign speech by non-voters is less worthy of protection than the interest in protecting speech about general issues.

Fourth, while money is used to finance speech, money is not speech. Speech is only one of the activities that are financed by campaign contributions and expenditures. Those financial activities should not receive the same constitutional protection as speech itself. After all, campaign funds were used to finance the Watergate burglaries – actions that clearly were not protected by the First Amendment.

Fifth, the central error in the Court’s campaign finance jurisprudence is the holding in the 1976 case of Buckley v. Valeo [442 U.S. 1 (1976)] that denies Congress the power to impose limitations on campaign expenditures. My friend Justice Byron White was the only member of the Court to dissent from that holding. As an athlete and as a participant in Jack Kennedy’s campaign for the presidency, he was familiar with the importance of rules requiring a level playing field. I did not arrive at the Court in time to participate in the decision of the Buckley case, but I have always thought that Byron got it right. After the decision was announced, Judge Skelly Wright, who was one of the federal judiciary’s most ardent supporters of a broad interpretation of the First Amendment, characterized its ruling on campaign expenditures as “tragically misguided.”[J. Skelly Wright, “Money and the Pollution of Politics: Is the First Amendment an Obstacle to Political Equality?,” 82 Col. L. Rev. 609, 609 (1982).]

Because that erroneous holding has been consistently followed ever since 1976, we need an amendment to the Constitution to correct that fundamental error. I favor the adoption of this simple amendment:

Neither the First Amendment nor any provision of this Constitution shall be construed to prohibit the Congress or any state from imposing reasonable limits on the amount of money that candidates for public office, or their supporters, may spend in election campaigns.

I think it wise to include the word “reasonable” to insure that legislatures do not prescribe limits that are so low that incumbents have an unfair advantage or that interfere with the freedom of the press. I have confidence that my former colleagues would not use that word to justify a continuation of the practice of treating any limitation as unreasonable.

Unlimited campaign expenditures impair the process of democratic self-government. They create a risk that successful candidates will pay more attention to the interests of non-voters who provided them with money than to the interests of the voters who elected them. That risk is unacceptable.

Thank you.

[Note: Footnotes were converted to bracketed references in the text.]

[Hat tip to Fred Wertheimer]

For more on Justice Stevens and his proposed Amendment to the First Amendment, go here and see also Professor Richard Hasen’s op-ed here.

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5 Responses

  1. Brett Bellmore says:

    “Fourth, while money is used to finance speech, money is not speech. ”

    Yeah, but try publishing a newspaper if you can’t buy paper and ink. What a tool Stevens is. He wants to give the government the power to censor political speech, and pretend he isn’t.

  2. mls says:

    By the logic of Stevens’s game-playing analogy, Congress could forbid election related speech by anyone other than an authorized “player” in the election. Indeed, it sounds like he would favor such a scheme.

  3. Joe says:

    Stevens notes that money “should not receive the same constitutional protection as speech itself” — so maybe before we call him a “tool,” the whole nature of the statement should be recognized. His argument is that it is not directly speech, so it should not get “the same” protection. This doesn’t mean he is ignorant that money is needed in various ways for speech to occur etc. He doesn’t “deny” that he wants to regulate speech. Speech is “regulated” (“censored”) in various ways. The USSC, as Stevens noted, upheld a limit on foreign contributions. Brett et. al. might think this is rank censorship, but that is what it did — after Citizens United.

    The second comment also goes off the rails trying to push Stevens’ logic (this from someone who thinks he is wrong to some extent here) farther than it really goes. The use of “election related speech” provides the specter — which is a tad absurd — that Stevens thinks the government can block some foreigner writing an op-ed about an election. His concern here is thinks like money though it’s quite well accepted that citizenship can also be a limit on voting or running for office. But, “speech” itself is still allowed there. Non-citizens are “authorized players” to some extent.

  4. JOHN GRONDELSKI says:

    When the Supreme Court (erroneously) declared that flag burning was protected speech and President George H.W. Bush urged a Constitutional amendment to change that error, the Left got into a collective hissy-fit about “the first time a Constitutional amendment would take away freedom granted in the Bill of Rights!” But being able to influence political decision-making in a real world–in a world in which politics costs money and getting your message out costs money (I live in New Jersey–try putting out your political view in the New York and Philadelphia markets if you want to see what money can buy)–this, a core value of the First Amendment, is precisely what the Left (with Justice Stevens a willing collaborator) is ready to eviscerate and disembowel.

  5. Mike Stern says:

    Joe- this is what Stevens said: “Elections are contests between rival candidates for public office. Like rules that govern athletic contests or adversary litigation, those rules should create a level playing field. The interest in creating a level playing field justifies regulation of campaign speech that does not apply to speech about general issues that is not designed to affect the outcome of elections. The rules should give rival candidates – irrespective of their party and incumbency status – an equal opportunity to persuade citizens to vote for them. Just as procedures in contested litigation regulate speech in order to give adversary parties a fair and equal opportunity to persuade the decision-maker to rule in their favor, rules regulating political campaigns should have the same objective. In elections, the decision-makers are voters, not judges or jurors, but that does not change the imperative for equality of opportunity.”

    That sure sounds to me like he thinks elections can be regulated the same way as a court proceeding, with strict limits on who can address the “jury” (voters), when they can address them and what they are allowed to say. No doubt Stevens would not take this analogy so far as to suggest that individual citizens need to get permission before they speak to their neighbors about an election, but it is not clear that he has any principled reason for drawing such a distinction. If Congress could establish an evidentiary record that allowing individual citizens to speak about an election risks making it “unequal” (say because the rich and famous have an unfair advantage in communicating their views), Stevens’s amendment would arguably allow it to do so.

    His testimony also betrays the insubstantiality of the “money/speech” distinction. The analogy to litigation illustrates the distinction is meaningless (the rules of a courtroom are focused on speech, not money). Moreover, our experience as lawyers tells us that it is relatively easy to interpret all human activity as involving the expenditure of money in some way (think of the Interstate Commerce Clause). If I send an email, I am spending a tiny bit of money. If I knock on doors, I am wearing out shoe leather that will have to be replaced. My time itself can be viewed as an in-kind contribution (time is money).

    The language of the proposed amendment plus Stevens’s justification for it would justify virtually any limitation on election-related speech, including those ones clearly designed to protect incumbents.