[EL] Cruz op-ed on proposed constitutional amendment
Rick Hasen
rhasen at law.uci.edu
Wed Jun 4 14:32:48 PDT 2014
Message from John White, who is having trouble posting:
*From:*John White
*Sent:* Wednesday, June 04, 2014 1:39 PM
*To:* 'law-election at uci.edu <mailto:law-election at uci.edu>'
*Subject:* RE: [EL] Cruz op-ed on proposed constitutional amendment
It seems that section 3 undoes the rest of the proposed amendment at the
federal level. "Press" as used in the First Amendment refers to a means
of communication, not a particular industry -- in much the same way as
it prohibits restriction on speech.
However, the proposed amendment's limitation on abridging freedom of the
press is not extended to the states.
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On 6/4/14, 2:01 PM, Scarberry, Mark wrote:
>
> This isn't exactly responsive, but we certainly are right to take
> seriously the intent of those Republicans to amend to Constitution if
> they get the votes, and to conclude that they are committed to the
> proposition that flag desecration ought to be prohibited. Why can't we
> treat the 43 Democratic Senators the same way?
>
> 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
> *Sean Parnell
> *Sent:* Wednesday, June 04, 2014 1:45 PM
> *To:* 'Mark Schmitt'; law-election at department-lists.uci.edu
> *Subject:* Re: [EL] Cruz op-ed on proposed constitutional amendment
>
> 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 <mailto:sean at impactpolicymanagement.com>
>
> *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 4:41 PM
> *To:* law-election at department-lists.uci.edu
> <mailto: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 <mailto: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>
> [mailto: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
> <mailto: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>
> [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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--
Rick Hasen
Chancellor's Professor of Law and Political Science
UC Irvine School of Law
401 E. Peltason Dr., Suite 1000
Irvine, CA 92697-8000
949.824.3072 - office
949.824.0495 - fax
rhasen at law.uci.edu
http://www.law.uci.edu/faculty/full-time/hasen/
http://electionlawblog.org
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