[EL] correction re vote on constitutional amendment

[Arn Pearson]

The revised amendment is both narrower and more effective than the original bill.  Section 1 restores and strengthens compelling governmental interests that the Roberts Court has read out of campaign finance jurisprudence in its drive to make quid pro quo corruption the only justification for regulation.  Those interests will then need to be balanced with the First Amendment which, contrary to the colorful arguments of Senator Cruz, remains fully in effect.  There are many areas of law where speech rights are balanced against other rights and interests, from courtroom arguments, to libel and slander laws, hate speech and public protest regulations.  There is absolutely nothing in the revised amendment that would allow discriminatory or content-based regulations.

The reference in Section 2 does actually have a purpose – to make it clear that Congress and the states may restore prohibitions on corporate spending (and contributions, the way the Court seems to be headed) that held sway at the federal level and in many states for most of the last century.  It does not address the “personhood” issue or otherwise eliminate constitutional protections for corporations.

I personally believe that the “to advance” purpose language in Section 1 is adequate to restrain the scope of future campaign finance laws, but Senator Durbin and other clearly felt that the word “reasonable” should to be added in, per the testimony of J. Stevens.

From: law-election-bounces at department-lists.uci.edu [mailto:law-election-bounces at department-lists.uci.edu] On Behalf Of Mark Schmitt
Sent: Thursday, June 19, 2014 10:44 AM
To: law-election at UCI.edu
Subject: Re: [EL] correction re vote on constitutional amendment

Incidentally, the amendment as passed by subcommittee is somewhat different from Udall's S.J. Res. 19 as introduced.  It adds a meaningless nod to the "corporations aren't people" crowd, and adds the word "reasonable" before the word "limits." From what I watched of the markup, the Dems seemed to be arguing that this word would be sufficient to stop the non-viewpoint-neutral or non-content-neutral regulations that Cruz was warning about and that we discussed in an earlier thread.
Amended version, as found at http://www.judiciary.senate.gov/meetings/executive-business-meeting-2014-06-18

‘‘SECTION 1. To advance democratic self-government
 and political equality, and to protect the integrity of government and the electoral process, Congress and the States may regulate and set reasonable limits on the raising and spending of money by candidates and others to influence elections.

 ‘‘SECTION 2. Congress and the States shall have power to implement and enforce this article by appropriate legislation, and may distinguish between natural persons and corporations or other artificial entities created by law, including by prohibiting such entities from spending money to influence elections.

‘‘SECTION 3. Nothing in this article shall be construed to grant Congress or the States the power to abridge the freedom of the press.’’.

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

On Thu, Jun 19, 2014 at 9:54 AM, Rick Hasen <rhasen at law.uci.edu<mailto:rhasen at law.uci.edu>> wrote:
Senate Judiciary Committee Subcommittee [Corrected] Votes 5-4 in Favor of Campaign Finance Amendment<http://electionlawblog.org/?p=62507>
Posted on June 19, 2014 6:50 am<http://electionlawblog.org/?p=62507> by Rick Hasen<http://electionlawblog.org/?author=3>

So reports Peter Overby.<https://twitter.com/peteroverby/status/479358474066087936>

[This post has been corrected and bumped to the top.]
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