FAN 18 (First Amendment News) — What to do with the First Amendment? Election Law & Free Speech


I have not taken a position, one way or the other, on these constitutional amendments; we are having a hearing.” — Senator Patrick Leahy, June 3, 2013

To amend or not to amend? The question lingers and the debate continues. In the political maelstrom, some liberals push to amend the First Amendment while conservatives push back against the idea of tinkering with the Bill of Rights. It is a sign of our times that jaws don’t drop in utter amazement at the ideological lineup at play here.

Protestors at Senate SJ 19 hearing just before it began

Protestors at Senate SJ 19 hearing just before it began

“We are here to declare victory,” said Bobby Burchfield at a Heritage Foundation event this past Monday (see below). The seasoned election law lawyer, who argued on behalf of the RNC in the McCutcheon case, stressed victory because in his view campaign finance reformers have now conceded that their reform measures cannot be reconciled with the First Amendment. Echoing that point, Donald McGahn (former FEC chairman and prominent election law lawyer now with Jones Day) told the Heritage audience: “The so-called reformers are finally admitting that what they want to do is unconstitutional.”

Messrs. Burchfield and McGahn were referring to a proposed constitutional amendment  (S.J. 19) introduced by Senator Tom Udall (D-NM) and co-sponsofed by Senators Michael Bennet (D-CO) and Jon Tester (D-MT) along with 38 others (no Republican co-sponsors — 33 co-sponsors have joined a companion amendment in the House, H.J. Res. 20). A hearing on the Udall proposal took place yesterday in the Senate.

The Senate Hearing

Senator Leahy chatting with Senator Reid (seated).

Senator Leahy chatting with Senator Reid (seated).

Senate Hart Building, Rm. 216, 10:30 a.m — Senator Patrick Leahy (D-Vt.) chaired the hearing. Sixteen senators were present at various times during the hearing. Introductory comments were made by  Chairman Leahy (statement here) and Senator Chuck Grassley (R-IA) (statement here). Their remarks were followed by the first panel of witnesses, which consisted of Majority Leader Harry Reid (D-Nev.) (statement here) followed by comments from Minority Leader Mitch McConnell (R-KY) (statement here). “This joint appearance,” said Committee Chairman Patrick Leahy (D-Vt.), “is a first in the Committee’s history as far as we can tell.”  

Prior to the second panel’s statements, comments were offered by Senator Richard Durbin (D-IL) and Senator Ted Cruz (R-TX) (video clip here).  The second panel consisted of statements by Floyd B. McKissick, Jr. (a state Senator from North Carolina) (statement here), Floyd Abrams (Partner, Cahill Gordon & Reindel) (statement here), and Jamie Raskin (Professor of Law, American University, Washington College of Law) (statement here).

Here are a few excerpts from State Senator McKissick’s remarks:

“In 2010 alone Americans For Prosperity, a group funded in large party by the Koch brothers, spent more than a quarter of a million dollars in North Carolina. Another group, Civitas Action, spent more. A new organization that sprang up, called Real Jobs NC, spent almost $1.5 million dollars. Overall, three quarters of all the outside money in state races that year were tied to one man: Art Pope. Pope and his associates poured money into 22 targeted races, and the candidates they backed won in 18.”

Here are a few excerpts from Mr. Abrams’ remarks:

“The description of the constitutional amendment it proposes states, in its text, that it ‘relate[s] to contributions and expenditures intended to affect elections.’ That’s one way to say it, but I think it would have been more revealing to have said that it actually ‘relate[s] to speech intended to affect elections.’ And it would have been even more revealing, and at least as accurate, to have said that it relates to limiting speech intended to affect elections. And that’s the core problem with it. It is intended to limit speech about elections and it would do just that. . . .”

Here are a few excerpts from Professor Raskin’s remarks:

“[I]n several recent 5-4 decisions, the wall protecting democracy from plutocracy has been crumbling under judicial attack. Four years ago, in Citizens United v. FEC, the Roberts Court majority bulldozed an essential block of the wall, the one that kept trillions of dollars in corporate treasury wealth from flowing into federal campaigns. In Arizona Free Enterprise Club’s Freedom Club PAC v. Bennett (2011), the Court stifled public debate and destroyed vast new opportunities for political speech by striking down public financing programs that use matching funds and a trigger mechanism to amplify the voices of less affluent candidates competing to be heard over the roar of big wealth. In McCutcheon v. FEC (2014), the Court took a sledgehammer to the aggregate contribution limits, empowering political tycoons and shrewd business investors to max out to every Member of Congress and all their opponents. All of these assaults on political equality and free speech were justified in the name of the First Amendment.”

See Amy Howe’s SCOTUSblog post here.

→ A vote on S.J. 19 is said to occur later this year. 

A Few Highlights from S.J. 19 Hearing

  • Boxes of petitions calling for a constitutional amendment.

    Boxes of petitions calling for a constitutional amendment.

    Senator Leahy: “Two million Americans have signed petitions calling for a constitutional amendment.” [Stacks of boxes containing the petitions were brought into the hearing room for display.]

  • Senator Grassley: “Today freedom of speech is threatened as it has not been in many decades.”
  • Senator Reid: “Is there any member of this Committee who believes the status quo is good?”
  • Senator McConnell: “Everyone on this panel knows this proposal will not pass . . . . This is a political exercise and that’s all it is.”
  • Senator Jefferson Sessions (R-AL): “The First Amendment . . . is not a collective right.”
  • Senator Cruz: “Citizens are still astonished that members of Congress would dare support repealing the First Amendment. . . . This amendment is about power and about politicians silencing citizens. . . . We are in a strange point in time when Democrats abandon the First Amendment, and, indeed, propose repealing it.”
  • Professor Raskin: “Don’t be intimidated; the people are with you. . . . [The Petitioners in Citizens United] could have won, and should have won, on that point [i.e., statutory grounds].”
  • Senator Charles Schumer (D-NY): “The First Amendment has always had a balancing test.”
  • Senator Jean Klobuchar (D-MN) question to Mr. Abrams: “Do you support any other limits [beyond disclosure] on campaign contributions . . . .?  Mr. Abrams: “I’ve pretty well come to the conclusion that contribution limits . . . ought to fall. I think they should be disclosed, but it seems to me that we’ve reached a point, both in our jurisprudence and our politics, where if we know what the money is and where it is coming from that . . . we can trust the public to make a rational decision . . . .”
  • Senator Reid quoting Senator Mitchell (apparently from statement made in 1987 or 1988): “‘We Republicans have put together a responsible and Constitutional campaign reform agenda. It would restrict the power of special interest PACS, stop the flow of all soft money, keep wealthy individuals from buying public office.'”

* * * * 

Ken Kulkowski: “Only one amendment has modified a previous amendment. The Eighteenth Amendment was ratified in 1919 and empowered Congress to forbid alcohol nationwide. Then the Twenty-First Amendment was ratified in 1933 to repeal the Eighteenth Amendment and allow alcohol to flow once again.” [Source: here]

* * * * 

Heritage Foundation Event

The day before the Senate hearing on S.J. 19, the proposed amendment was a topic of discussion at the Heritage Foundation. The panel was moderated by Elizabeth Slattery with comments by Bobby Burchfield, Donald McGahn, and Hans A. von Spakovsky. Here are a few excerpts from their remarks:

Mr. Burchfield: “The McCutcheon decision is plainly correct.  McCutcheon like Citizens United did not break new First Amendment ground” since both decisions were consistent with Buckley v. Valeo, which rejected the idea of leveling the political playing field rationale. “The self-styled reform community is trying to read into the First Amendment what democratic government should be. The First Amendment does not impose on government a duty to limit speech.”  

Dan McGahn

Dan McGahn

Mr. McGahn: Under S.J. 19, could “Congress prohibit a labor union from communicating with its members?  What about the NRA and its members?” Can S.J. 19’s ban be “speech selective?”  Would it apply to “pastors and their congregation? What about bloggers who aired a video like the one in Citizens United?  What about books?”  McGahn also analogized S.J. 19 with the British Licensing Order of 1643 and the Stamp Act of 1765 in that all of these measures required permission from the government to speak.

Mr. von Spakovsky: “Nearly all means of communication require spending money—from the ‘humblest handbill or leaflet’ to political advertisements run during prime time on ‘television, radio, and other mass media,’ which are “indispensable instruments of effective political speech. . . . Supporters of this amendment claim that restricting the amount of money that may be spent on political speech and activity is not the same as limiting speech, but that is the equivalent of saying that limiting the amount of newsprint a newspaper may buy does not limit the newspaper’s speech. Coincidentally, the proposed constitutional amendment has one glaring exception: It would not apply to the press. Thus,The New York Times and MSNBC could continue to spend as much money, newsprint, and airtime as they want supporting their preferred candidates (or attacking those they oppose), but individuals, associations, and non-media corporations would be strictly limited in their political speech. This is certainly no way to ‘level the playing field.'”

 A video of the event should be available soon (check here)

Call for Constitutional Convention? 

Montpelier, Vt. (AP) – “Sen. Patrick Leahy says he’d rather see the Congress craft a constitutional amendment to overturn recent U.S. Supreme Court decisions on campaign finance than have states call a constitutional convention to address the issue.”“The comments from the Vermont Democrat and chairman of the Senate Judiciary Committee follow his home state’s Legislature becoming the first in the country to call for a constitutional convention to amend the country’s founding document.”“Leahy says he worries a constitutional convention could stray onto other issues ranging from gutting environmental regulation to restricting voting rights.” [Source: here]

“Want Money Out of Politics? Put Some Money Into Politics with Lawrence Lessig’s Super PAC”                                                 

“The Harvard professor has already raised $1 million from thousands of smaller donors who he’s asking to spend big money to make sure that no one can spend big money again–and instead politicians have to listen to regular people.”

“Harvard professor Larry Lessig’s business pitch seems backwards, at first. It goes something like this: Invest in his super PAC, and get money out of politics. Donate enough money to render all the other money in politics meaningless. So what’s the return on an investment, that, by definition, wants to ruin big, private financial investments in politics? ‘A return to something like a representative democracy,’ is how Lessig puts it.”

“That business pitch is now a $1 million idea. After launching a formal super PAC on May 1, thousands of small dollar donations flooded MayDay PAC’s servers, crashing them temporarily. It didn’t matter. Lessig and the MayDay PAC raised $1 million in less than two weeks, well ahead of their June 1 crowd-funding deadline, and the first in a series of fundraising goals to spur a mass movement towards campaign finance reform in the 2014 midterm elections.”

“Marshaling 20,000 donations between $5 and $5,000 (the average was less than $100), Lessig now has his sights set on the end of the next month for another goal: $5 million, plus another $5 million in donor money to match if the crowdfunding campaign’s successful.” [Source: here]

Two Observations

→ Dana Milbank, “This is no way to fix the problem of billionaires buying elections,” Washington Post, June 4, 2014.

“I agree with Ted Cruz. Before you stick a thermometer in my mouth or suggest that I up my meds, let me assure you that much of what the Texas Republican said at Tuesday’s Senate Judiciary Committee hearing was just as wacky and reckless as usual. Cruz alleged that Democrats, in proposing a constitutional amendment to limit campaign contributions, ‘support repealing the First Amendment,’ would ‘abandon the Bill of Rights,’ were seizing ‘the power to ban books and to ban movies,’ and favored ‘politicians silencing the citizens.'”

“But somewhere among the hysteria, the hyperbole and the hyperventilation was a good question from the tea party demagogue. ‘Where are the liberals today?’ Cruz asked. ‘Why is there not a liberal standing here defending the Bill of Rights and the First Amendment?'”

“Democrats should be asking that of themselves.”

→ Geoffery Stone, “The Supreme Court Has Given Us a Government of, By, and For the 1 Percent,” The Daily Beast, June 3, 2014.

“In case after case, the five conservative justices on the Supreme Court have held unconstitutional all efforts—state as well as federal—to restrain the corrosive influence of limitless individual and corporate expenditures and contributions in our electoral process. They do this in the name of free speech. In their view, the First Amendment absolutely guarantees the wealthiest Americans the right to spend as much as they like to manipulate the American political system to their advantage. According to these justices, as long as the wealthiest Americans do not directly bribe politicians to vote in their favor, the Constitution demands the flow of money is beyond regulation and that the rest of us must simply let the chips fall where they may. This conception of the First Amendment and of the American constitutional system is truly perverse.”

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2 Responses

  1. Orin Kerr says:

    Am I correct in thinking that the point of the hearing is less to pass an Amendment — which seems very unlikely to pass — but rather to show disagreement with the Supreme Court’s decisions and hope it pays off with either more political reforms or different constitutional interpretations down the road?

  2. dht says:

    The problem is not free speech per se. Imagine two people standing next to one another. One is sealed in a glass room, while the other is standing on an open stage, with a megaphone. Each individual can speak freely about anything they want, but only one will be heard. This is the crux of the conversation. To what extent does the First Amendment protect the dissemination of speech, not just the speech itself. Further, if dissemination is protected, to what extent must it be disseminated equally.