[EL] correction re vote on constitutional amendment

Thu Jun 19 09:28:14 PDT 2014

Arn's post shows the difficulty of this effort. "There is absolutely nothing in the revised amendment that would allow discriminatory or content-based regulations." Really? Why not? The proposed Amendment specifically grants Congress an affirmative power. Why shouldn't that trump past Court rulings on content neutrality? That power may be exercised "To advance democratic self-government and political equality, and to protect the integrity of government and the electoral process."  Why isn't this an explicit grant of power to allow discriminatory or content-based regulations? Because Arn says so?

So if Congress decides that the integrity of government and the electoral process is threatened by negative ads, can it ban or regulate those? Criticism of the ethics of sitting members? Suppose that Congress decides that the determination of a minority - but a minority large enough to be sufficient under our system to block legislation - to "automatically reject the scientific evidence ... [and to claim that] climate change is a hoax or a fad" (to use the recent words of a prominent politician) threatens the integrity of government, which must be based on good science: can that be limited? Or perhaps promoting political equality requires silencing those who would argue against the Voting Rights Act, or for less early voting, or for voter ID laws, or even for tax cuts for "the rich." Maybe it would require silencing those who favor affirmative action? In other words, who decides what promotes political equality and protects the integrity of government?

And since the substitute gives Congress and the States specific power to "distinguish between natural persons and corporations or other artificial entities created by law," couldn't the legislature decide that corporations may not advocate on specific issues, or advocate specific points of view (lower corporate tax rates; import quotas, etc.)? Doesn't this clause specifically grant the power to enact discriminatory legislation?

One can only conclude that there can't be viewpoint discrimination under this proposed Amendment by assuming that the Supreme Court won't take the Amendment at face value. But if it won't do that, and if "the First Amendment ... remains fully in effect," why should we assume the Court won't interpret the Amendment as harmonious with past decisions: why couldn't a court interpret "influence elections" as "explicit words of advocacy of election or defeat," as it did with nearly identical language in Buckley? Could it not determine that "reasonable limits" are not met by anything limiting corporations to less than 1% of total national political spending, or over $70 million in 2012? In that case, nothing has been accomplished, and while Jim would say "Thank God," I doubt that Arn would be happy with that.

Of course, any constitutional provision must be interpreted, and we count on courts to give it a reasonable interpretation, so the mere fact that the Court *could* make some interpretation doesn't mean that it will. I am sure, however, that the Court majority thinks its interpretations in Citizens United and McCutcheon were reasonable, but maybe, as faithful jurists (thus disappointing the many reformers who claim that the Court was nakedly partisan in Citizens United) they would think them "unreasonable" in light of this amendment. That would seem to require them to focus on the intent of the Amendment, which seems to be to overturn those two above named decisions (but Buckley? hmmm.... Was this intended to overturn Buckley? All of it? Part? maybe? maybe not? Nobody has said much about this Amendment as necessary to overturn Buckley.) And why shouldn't a court view this as pretty much giving Congress and the states carte blanche? It seems pretty clear - if we want to focus on intent - that many supporters in fact do want viewpoint discrimination - that the impetus for some, at least, are the specific view of the Charles and David Koch and certain other speakers. And nothing in the language limits viewpoint discrimination (although I suppose many supporters refuse to believe that the Thomases and Scalias of the world really take plain language theory seriously, and are willing to gamble on that).

Of course, maybe this all doesn't matter, since this is a symbolic vote. But then, should we take seriously members who won't take their own actions seriously? Another good question.

Bradley A. Smith

Josiah H. Blackmore II/Shirley M. Nault

   Professor of Law

Capital University Law School

303 E. Broad St.

Columbus, OH 43215

614.236.6317

http://law.capital.edu/faculty/bios/bsmith.aspx

________________________________
From: law-election-bounces at department-lists.uci.edu [law-election-bounces at department-lists.uci.edu] on behalf of Arn Pearson [APearson at commoncause.org]
Sent: Thursday, June 19, 2014 11:22 AM
To: Mark Schmitt; law-election at UCI.edu
Subject: Re: [EL] correction re vote on constitutional amendment

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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Posted in campaign finance<http://electionlawblog.org/?cat=10>

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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

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http://www.law.uci.edu/faculty/full-time/hasen/

http://electionlawblog.org

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