[EL] Cruz op-ed on proposed constitutional amendment

Wed Jun 4 09:31:30 PDT 2014

Question: doesn’t the wording of Section 3 kind of give the game away?  My guess is there’s a reason behind this wording that I’m just not aware of, but why limit that disclaimer to just freedom of the press?  Seems to me this almost tacitly acknowledges that limiting spending money on speech actually does “abridg[e]” “speech” within the relevant meaning of those terms for 1st amendment purposes.

I would have thought the much stronger way to frame this is that especially in the internet era, it’s simply no longer true that limiting spending money on speech is the same thing as limiting “speech” itself.  To kind of bastardize Eugene Volokh’s travel analogy: imagine a technology that allowed you to travel as “conveniently” as travel by plane, train, or automobile (i.e., sit in this here aluminum tube for several hours but get out hundreds or thousands of miles away from where you got in).  If that technology were available at a flat fee for about the price of a basic web-hosting account (say $20 per month), would it still constitute a limitation on travel itself to prohibit people from spending more than $10k a year or so on transportation?

If not, then why not phrase section 3 to clarify that this amendment doesn’t grant Congress power to abridge any 1st amendment freedoms at all?  In other words, why accept the current pendulum swing of Supreme Court 1st amendment jurisprudence as binding the American people?  Aren’t we free to clarify what we currently mean by “abridging the freedom of speech” whether the current Supreme Court sees it the same way or not?

___________________________________
Joseph M. Birkenstock
Sandler Reiff Lamb Rosenstein & Birkenstock, P.C.
1025 Vermont Avenue, NW, Suite 300
Washington, DC 20005
202.479.1111
*also admitted to practice in CA

From: law-election-bounces at department-lists.uci.edu [mailto:law-election-bounces at department-lists.uci.edu] On Behalf Of Mark Schmitt
Sent: Wednesday, June 04, 2014 11:40 AM
To: Election Law
Subject: Re: [EL] Cruz op-ed on proposed constitutional amendment

Reid has endorsed the Udall amendment. That seems to be the main one in play right now, vs. the ones that deal with corporate personhood.

113th CONGRESS
1st Session
S.J.RES. 19
Proposing an amendment to the Constitution of the United States relating to contributions and expenditures intended to affect elections
IN THE SENATE OF THE UNITED STATES
June 18, 2013
Mr. UDALL of New Mexico introduced the following bill, which was read twice and referred to the Committee on the Judiciary.

A BILL
Proposing an amendment to the Constitution of the United States relating to contributions and expenditures intended to affect elections.
Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That the following article is proposed as an amendment to the Constitution of the United States, which shall be valid to all intents and purposes as part of the Constitution when ratified by the legislatures of three-fourths of the several States:
Article --
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.

Mark Schmitt
202/246-2350
gchat or Skype: schmitt.mark
twitter: mschmitt9

On Wed, Jun 4, 2014 at 10:58 AM, Marty Lederman <lederman.marty at gmail.com<mailto:lederman.marty at gmail.com>> wrote:
What is the language of the hypothetical constitutional amendment that we are supposed to be analyzing?

On Tue, Jun 3, 2014 at 3:02 PM, Sean Parnell <sean at impactpolicymanagement.com<mailto:sean at impactpolicymanagement.com>> wrote:
I believe Rick linked to the op-ed in the Wall Street Journal by Senator Cruz<http://online.wsj.com/articles/ted-cruz-the-democratic-assault-on-the-first-amendment-1401662112> regarding the proposed constitutional amendment that would allow Congress to regulate money spent in politics. There were a handful of examples of what the Senator asserted the proposed amendment would do, I thought it would be interesting to post them and see if anyone here, on any side of the issue, wanted to either support or rebut the assertions. I’d note that the claims made by the Senator largely mirror what I’ve said myself in the past, so you can probably guess my thoughts on these assertions.

If this amendment were adopted, the following would likely be deemed constitutional:

Congress could prohibit the National Rifle Association from distributing voter guides letting citizens know politicians' records on the Second Amendment.

Congress could prohibit the Sierra Club from running political ads criticizing politicians for their environmental policies.

Congress could penalize pro-life (or pro-choice) groups for spending money to urge their views of abortion.

Congress could prohibit labor unions from organizing workers (an in-kind expenditure) to go door to door urging voters to turn out.

Congress could criminalize pastors making efforts to get their parishioners to vote.

Congress could punish bloggers expending any resources to criticize the president.

Congress could ban books, movies (watch out Michael Moore<http://topics.wsj.com/person/M/Michael-Moore/5437> ) and radio programs—anything not deemed "the press"—that might influence upcoming elections.
Anybody care to explain how/why Senator Cruz is wrong, or failing that I suppose, to argue that he’s right but that it’s a good thing these things could be done under the proposed amendment?

Sean Parnell
President
Impact Policy Management, LLC
6411 Caleb Court
Alexandria, VA  22315
571-289-1374<tel:571-289-1374> (c)
sean at impactpolicymanagement.com<mailto:sean at impactpolicymanagement.com>

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