[EL] Cruz op-ed on proposed constitutional amendment

Wed Jun 4 13:40:57 PDT 2014

If you add the 24 (all Republicans) who have cosponsored S.J. Res. 17,
Hatch's flag-desecration amendment, you've got almost 2/3 of the Senate
showing limited regard for freedom of expression. It's a bipartisan vice.

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

On Wed, Jun 4, 2014 at 4:16 PM, Scarberry, Mark <
Mark.Scarberry at pepperdine.edu> wrote:

> 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/ <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
> <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.
>
>
>
>
>
>
>
>
> _______________________________________________
>
> Law-election mailing list
>
> Law-election at department-lists.uci.edu
>
> http://department-lists.uci.edu/mailman/listinfo/law-election
>
>
>
> _______________________________________________
> Law-election mailing list
> Law-election at department-lists.uci.edu
> http://department-lists.uci.edu/mailman/listinfo/law-election
>
-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://webshare.law.ucla.edu/Listservs/law-election/attachments/20140604/de681a15/attachment.html>