[EL] Cruz op-ed on proposed constitutional amendment

Wed Jun 4 13:44:39 PDT 2014

Point taken, but I suggest one is rather narrowly tailored, while the other is quite sweeping in the amount of speech it would stifle.

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 4:41 PM
To: law-election at department-lists.uci.edu
Subject: Re: [EL] Cruz op-ed on proposed constitutional amendment

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/) 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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