[EL] Cruz op-ed on proposed constitutional amendment

Wed Jun 4 13:23:30 PDT 2014

Adding to Mark, it's not like this amendment is a one-off, it is just one of
the latest iterations of the many, many efforts to undo Citizens United and,
for that matter, a key part of Buckley. I somehow doubt that supporters of
Roe vs. Wade look at many US Senators support for a 'human life amendment'
and think 'oh, that's just a symbolic thing, they know it's not going
anywhere.' Instead, it's viewed (appropriately, I think) as part of the
overall commitment on certain officeholders part to seek a general
prohibition (to some degree or another) on abortion.

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
Scarberry, Mark
Sent: Wednesday, June 04, 2014 4:17 PM
To: law-election at department-lists.uci.edu
Subject: Re: [EL] Cruz op-ed on proposed constitutional amendment

It's a proposal *to amend the Constitution*. It isn't a resolution
criticizing Citizens United or naming a post office after someone whose
actions are questionable. 

It would be remarkable if we couldn't hold a Senator and 42 cosponsors
responsible for positions entailed by their  formal proposal to amend the
Constitution, where they have not said that it is merely a protest that they
would not follow through on if they had the votes. If I'm reading Thomas
correctly, there are 43 Senators who have formally proposed the amendment of
the Constitution. They represent three quarters of the Senators from the
Senate majority party, which is also the party holding the Presidency. Are
we supposed to think that 43 Senators don't believe in something they've
formally proposed, or that their party is opposed to it? 

Do you think they don't want to sway public opinion toward the position
expressed in the proposed amendment, with potential long-term effects on
freedom of expression?

Yes, it may be politics, but it can't be treated as only politics.

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] On Behalf Of Robert
Wechsler
Sent: Wednesday, June 04, 2014 12:45 PM
To: law-election at department-lists.uci.edu
Subject: Re: [EL] Cruz op-ed on proposed constitutional amendment

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] 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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