[EL] Cruz op-ed on proposed constitutional amendment

[Sean Parnell]

I was hoping you might want to address some of the specific concerns raised by Senator Cruz, but you raise an interesting question still.

 

I think one issue would have to be, which restrictions are and are not viewpoint neutral? I’ve heard ‘reformers’ swear up and down that the original DISCLOSE Act was viewpoint neutral, despite the fact that, for example, contracts with businesses above a certain level triggered a ban on independent speech while grants (which unions receive for worker training and other purposes) of the same level would not. Suffice it to say, some thought that was not viewpoint neutral. Likewise the NRA carveout that specified membership of 1 million or more and 10 years of 990 filings, written in a ‘viewpoint neutral’ way, did not seem to be so to many people.

 

But your question is whether non-viewpoint neutral prohibitions and regulations would be able to survive under the Udall amendment. The correct answer, I think, is ‘Who knows?’ As I tell state legislators when I lobby against National Popular Vote, trying to determine in advance how the Supreme Court might rule is kind of tricky. Which ought to be troubling, I think.

 

Sean Parnell

President

Impact Policy Management, LLC

6411 Caleb Court

Alexandria, VA  22315

571-289-1374 (c)

sean at impactpolicymanagement.com

 

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 10:26 AM
To: Election Law
Subject: Re: [EL] Cruz op-ed on proposed constitutional amendment

 

This is a good question, Sean, but I'd like to rephrase it a bit less tendentiously and perhaps one of the constitutional scholars on the list can answer: Would a restriction on campaign spending that plainly wasn't content-neutral (e.g., one that applied only to the NRA) be permitted post-amendment? If the ability of Congress and states to regulate election-related spending were fully protected, how would the Court be able to invalidate such a law?

This is one of several ways in which a constitutional amendment might have a very different effect than simply undoing Buckley, Citizens United, etc. 

 

------ Original Message ------

From: "Sean Parnell" <sean at impactpolicymanagement.com>

To: "Election Law" <law-election at department-lists.uci.edu>

Sent: 6/3/2014 3:02:06 PM

Subject: [EL] Cruz op-ed on proposed constitutional amendment

 

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 (c)

sean at impactpolicymanagement.com

 

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