The First Amendment never needs defending when it comes to popular speech. . . . I would hope that all of us in this chamber champion liberty … but when I hear some talk about cutting back on our First Amendment rights, you can see why people would wonder. — Senator Patrick Leahy, June 26, 2006
That was the mindset of the man who on June 3rd will preside over a Senate Judiciary Committee hearing on a constitutional amendment to “rein in massive campaign spending.” Essentially, he takes exception to the proposition that spending money (or lots of it) on elections is protected speech, much as his opponents took exception eight years ago to the proposition that desecrating the flag was speech, let alone protected speech. In that regard, it is well to remember that the same Justice John Paul Stevens who recently testified before the Senate in favor of a constitutional amendment to overrule Buckley v. Valeo and its progeny was also the one who dissented from the First Amendment holding in the flag desecration cases (Texas v. Johnson and United States v. Eichman). Thereafter, the campaign to pass a constitutional amendment to overrule those cases nearly succeeded (see below).
Text of Proposed Constitutional Amendment
I respect my colleagues’ fidelity to the First Amendment, but no amendment is absolute. – Senator Chuck Schumer (D-NY) (May 2014)
The proposed constitutional amendment (S.J. 19) set out below was 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):
SECTION 1. To advance the fundamental principle of political equality for all, and to protect the integrity of the legislative and electoral processes, Congress shall have power to regulate the raising and spending of money and in-kind equivalents with respect to Federal elections, including through setting limits on— (1) the amount of contributions to candidates for nomination for election to, or for election to, Federal office; and (2) the amount of funds that may be spent by, in support of, or in opposition to such candidates.
SECTION 2. To advance the fundamental principle of political equality for all, and to protect the integrity of the legislative and electoral processes, each State shall have power to regulate the raising and spending of money and in-kind equivalents with respect to State elections, including through setting limits on— (1) the amount of contributions to candidates for nomination for election to, or for election to, State office; and (2) the amount of funds that may be spent by, in support of, or in opposition to such candidates.
SECTION 3. Nothing in this article shall be construed to grant Congress the power to abridge the freedom of the press.
SECTION 4. Congress and the States shall have power to implement and enforce this article by appropriate legislation.
Question: Given the gravity of amending the First Amendment for the first time in our history, it would be well to know who exactly drafted the Udall amendment. If staffers, which one(s)? And did any law professor(s) help in the drafting?
→ Other proposed amendments can be found here.
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[This proposed amendment is ] an all-out assault on the right to free speech, a right which undergirds all others in our democracy. — Senator Mitch McConnell, May 15, 2014
A Constitutional amendment requires a two-thirds vote of the House and Senate and ratification by 38 states, so it has scant chance of passing any time soon. – WSJ Editorial, May 6, 2014
Historical First? — Liberal Push for Amendment to Amend First Amendment
Recent efforts to amend the Constitution in light of Citizens United might represent the first time in American history that liberals/progressives have, acting alone, moved to amend the First Amendment in a way that would constrict existing rights.
I say this mindful of the failed proposed amendment in the 1980s offered up by Senators Ernest Hollings (D-S.C.) and Arlen Specter (R-Pa.) and again by them in 1997 by way of bi-partisan proposals urging a constitutional amendment to authorize Congress to set spending limits. The 1997 measure was defeated by a 61-38 vote.
Note: Democracy 21, which was founded by Fred Wertheimer and is one of the leading progressive groups calling for campaign finance reforms, has taken no position on any proposals to amend the First Amendment, though People for the American way does support the Udall amendment as does Public Citizen.
Calls for Constitutional Amendment — Support in the States & Cities
Since the Citizens United case, 16 states and more than 500 local governments have called on Congress to overturnCitizens United through ballot initiatives, resolutions or other measures, showing strong public support for reform.
Presidents Bush & Obama on Amending the First Amendment
→ George W. Bush re proposed flag desecration constitutional amendment. “I believe the importance of this issue compels me to call for a constitutional amendment. Support for the first amendment need not extend to the desecration of the American flag.” (Press conference, June 27, 1989).
→ Barack Obama re proposed constitutional amendment to overrule Citizens United: “Over the longer term, I think we need to seriously consider mobilizing a constitutional amendment process to overturn Citizens United (assuming the Supreme Court doesn’t revisit it).”(Politico: August 29, 2012)
December 12, 1995 & June 28, 2006 — Select Senators’ Votes on Flag Desecration Amendment
→ Senator Harry Reid (D-NV): Yea (supported proposed amendment)
→ Senator Dianne Feinstein (D-CA): Yea (supported proposed amendment)
→ Senator Mitch McConnell (R-KY): Nay (opposed proposed amendment*)
→ Senator Barbara Boxer (D-CA): Nay (opposed proposed amendment)
→ Senator Dick Durbin (D-IL): Nay (opposed proposed amendment)
→ Senator Chuck Schumer (D-NY): Nay (opposed proposed amendment)
→ Senator Hilary Clinton (D-NY): Nay (opposed proposed amendment)
→ Senator Patrick Leahy (D-VT): Nay (opposed proposed amendment)
→ Senator Barack Obama (D-IL): Nay (opposed proposed amendment)
* In 2006, Senator Mitch McConnell was the only Republican to oppose the flag desecration amendment. Thus the Senate defeated the proposed amendment by a single vote.
[Sources: see here, here and here]
Now & Then — Senator Orrin Hatch on Amending the First Amendment
→ Senator Hatch NOW: “Political speech is critical to our democracy. Indeed, this principle is at the very foundation of our republic. It is one that our Supreme Court has upheld time and again, including very recently. Yet, when confronted with speech they don’t like, my friends on the other side of the aisle are willing to use every tool at their disposal – to even change the text of the Constitution itself – in order to silence it. In a marketplace of ideas – like the one the Founders intended – disagreeable speech can easily be met with additional speech. And, in the end, the truth will almost certainly prevail. But, alas, my friends don’t appear to be interested in the truth or the marketplace of ideas. They only want one store that will only sell ideas they happen to agree with. It’s truly mind-boggling. But, like I said, that’s where we are. [Remarks from Senate floor, May 5, 2014]
Senator Orrin Hatch
→ Senator Hatch THEN: see Carl Hulse & John Holusha, “Amendment on Flag Burning Fails by One Vote in Senate,” NYT, June 27, 2006 (“Senator Orrin Hatch, Republican of Utah and the chief sponsor of the [constitutional] amendment, predicted before the vote that those who opposed the amendment would be penalized by the voters if it was again defeated. ‘I think this is getting to where they are not going to be able to escape the wrath of the voters,’ said Mr. Hatch.”)
The American Civil Liberties Union’s Opposition
Here is the ACLU position as currently stated on its website: “Unfortunately, legitimate concern over the influence of ‘big money’ in politics has led some to propose a constitutional amendment to reverse the decision. The ACLU will firmly oppose any constitutional amendment that would limit the free speech clause of the First Amendment.”
→ And there is this statement by Laura W. Murphy, director, ACLU Washington Legislative Office (June 2012): “If there is one thing we absolutely should not be doing, it’s tinkering with our founding document to prevent groups like the ACLU (or even billionaires like Sheldon Adelson) from speaking freely about the central issues in our democracy. Doing so will fatally undermine the First Amendment, diminish the deterrent factor of a durable Constitution and give comfort to those who would use the amendment process to limit basic civil liberties and rights. It will literally ‘break’ the Constitution.”
First Amendment & Election Law Scholars’ Views
→ Geoffrey Stone (University of Chicago Law School): “If I were to propose a constitutional amendment, here’s what I would suggest: ‘In order to ensure a fair and well-functioning electoral process, Congress and the States shall have the authority reasonably to regulate political expenditures and contributions.’” [Source here -- Notice qualifier at outset.]
→ Laurence Tribe (Harvard Law School): “although I did assist my former student Adam Schiff (D. Cal.) in drafting a proposed constitutional amendment that I thought would be better than the alternatives floating around at the time, and although at one point I thought some such amendment would be wise to consider seriously, I haven’t joined forces with those who currently urge vigorous pursuit of the amendment path, which I think probably represents a political dead end.” [Source here]
→ Erwin Chemerinsky (University of California, Irvine): “A constitutional amendment has zero chance of being passed and enacted. There are many things legislatures — Congress, state legislatures, city councils — could do to reduce the effects of Citizens United. I think the effort to amend the Constitution diverts focus and energy from the possible legislative changes.” [Source here]
→ Richard Hasen (University of California, Irvine): “Even for those who support reasonable campaign finance regulation and side with the dissenters in [the] recent [campaign finance] cases, there’s a danger to giving the government too much power to set the rules for political competition . . . .” [Source here] Additionally, “drafters [of proposed constitutional amendments] will either write a narrow constitutional amendment ‘reversing’ Citizens United, which would not address many of the evils within our current campaign finance regime, or a very broad amendment, which would raise speech-squelching dangers and the potential for unintended consequences across a variety of social and political issues.” [Source here]
→ Steven Shiffrin (Cornell Law School): “I think the proposed ‘corporations are not people’ amendments though flawed are better than the present system.” [Source here]
Consider also the following two items:
“Former Attorneys General and Law Professors Call on Congress to Examine Constitutional Amendment To Reverse Citizens United” (signatories included: Professors Steven Shiffrin, Adam Winkler and Tamara Piety)
Eugene Volokh, “Sens. Tester & Murphy’s Constitutional Amendment Would Strip Rights from Corporate-Owned Newspapers, Advocacy Groups, Etc.”
Abrams, Lessig & Strossen to Debate Campaign Finance First Amendment Issue
On June 26, 2014 in Philadelphia, Floyd Abrams, Lawrence Lessig and Nadine Strossen (plus one other participant) will debate the following proposition: “Individuals and organizations have a constitutional right to unlimited spending on their own political speech.”
The debate is part of the Intelligence2 debate series and will take place at the National Constitution Center.
Tom Goldstein on Campaign Finance Issues
The next big question in campaign finance law to reach the Court may be whether the Citizens United ruling extends to contributions. Federal law now bans corporations from contributing directly to candidates. But there is a real question whether that statute is still constitutional, because corporations now have the right to participate in political campaigns too. [Source here]
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“True Threat” Case before the Supreme Court
Tomorrow, May 22nd, the Justices will consider the petition submitted in Elonis v. United States. The issue raised in that case is whether consistent with the First Amendment and Virginia v. Black, conviction of threatening another person under 18 U.S.C. § 875(c) requires proof of the defendant’s subjective intent to threaten, as required by the Ninth Circuit and the supreme courts of Massachusetts, Rhode Island, and Vermont; or whether it is enough to show that a “reasonable person” would regard the statement as threatening, as held by other federal courts of appeals and state courts of last resort.
John Elwood of Vinson & Elkins filed the petition for review on behalf of Anthony Elonis, whose conviction was upheld by the Third Circuit notwithstanding his First Amendment challenge.
Quick Hits
Rick Hasen, “Challenge to FEC’s PAC Disclosure Requirements Rejected by Supreme Court,” Election Law Blog (May 20, 2014)
Associated Press, “S.C. law criminalizes lying about military service,” Navy Times (May 20, 2014) (hat tip: Jeff Barnum)
Connor Adams Sheets, “Food Labeling Laws Could Be Undermined By First Amendment Court Challenge,” International Business Times (May 20, 2014) (“Chief Judge Merrick Garland said that in order to decide that First Amendment rights were being violated under the regulations, the court would ‘have to strike down at least half a dozen statutes on the books since the 1930s.’”)
Eugene Volokh, “Government erroneously releases information; someone publishes it. Can government order the publisher to take it down?,” Volokh Conspiracy (May 19, 2014)
______,”What does one do with a court ruling like this?,” Volokh Conspiracy (May 16, 2014) (“Today’s Iowa Supreme Court decision in Bertrand v. Mullins (Iowa May 16, 2014) deals with an interesting political libel case”)
Anna Staver, Oregon “High Court: Overnight protests at Capitol can be banned,” Statesman Journal (May 16, 2014)
Last Scheduled FAN Column (# 15): Free Speech & Judicial Elections: The Return of Kaus’ Crocodile
Last FAN Column (#15.2): “Justice Scalia on the First Amendment & Legal Education”
Next Scheduled FAN Column (# 16): Wednesday, May 28th