[EL] Cruz op-ed on proposed constitutional amendment

[Scarberry, Mark]

According to Thomas (http://thomas.loc.gov/) the Udall amendment currently has 42 cosponsors, which I find to be an extraordinary comment on the lack of commitment to freedom of expression.

A question that is basic to our discussion. Then five more questions, in addition to those already raised; and finally a comment.


The basic question: *Does anyone on the list support the proposed amendment?*


Five more questions:

1. Given that there is no apparent lower limit for the restrictions that could be imposed, and that “in-kind” contributions are covered, could Congress or a state legislature prohibit me from volunteering for, say, more than three hours to help a candidate’s campaign? Or from using my telephone to call registered voters and urge them to vote? What does it mean to “raise” or “spend” in-kind “contributions”? (Ok; that’s cheating, because it’s three questions.)

2. Would Congress have the power to, in effect, outlaw party conventions, because a party has to spend money “with respect to” federal or state elections in order to hold conventions?

3. Would the amendment preempt state constitutional provisions that have been interpreted by state courts to protect campaign expenditures or contributions? (The grant of power to “implement and enforce this article by appropriate legislation” could be read to allow state legislatures to impose such limits without regard to state constitutional provisions.)

4. Is this just put forward for political purposes and not as a serious proposal? (Perhaps the answer is too obvious for the question to be asked.)

5. Would the amendment implicitly redefine “freedom of the press,” inasmuch as a lot of spending on elections now is in a form that could be considered to fall within the press clause, such as the printing and mailing of campaign literature (and maybe TV advertising)? Note the very strong argument by Eugene Volokh and others (which I find compelling) that “press” is an activity that any of us engage in when we use means of mass communication, not just an activity engaged in by particular institutions or persons who could be called the “press.” Under Eugene’s interpretation of freedom of the press, the amendment would not reach a lot of what currently is spent, and would channel spending in a way that might be pernicious.


A comment: If this amendment were to be adopted with no lower limits, I would have to think seriously about whether our constitutional regime would be legitimate. Maybe that would depend on what legislation would then be adopted. I suppose some list members may have similar concerns about our current regime, as the First Amendment has been construed by the Supreme Court to allow unlimited expenditures.


Mark

Mark S. Scarberry
Professor of Law
Pepperdine Univ. School of Law





From: law-election-bounces at department-lists.uci.edu<mailto: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.


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