[EL] Cruz op-ed on proposed constitutional amendment

[Robert Wechsler]

/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./

I have only one question:  Does anyone actually believe that this 
proposed amendment involves any "commitment" at all? It's my 
understanding that this amendment is a way for senators to protest 
against the recent line of Supreme Court opinions. It's certainly not 
going to pass, so why are people taking it so seriously? It's politics, 
not a comment on anyone's commitment to anything.

Robert Wechsler




On 6/4/2014 2:54 PM, Scarberry, Mark wrote:
>
> 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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