By Denise M. Champagne
The Daily Record Newswire
ROCHESTER, NY — A proposed amendment to the Constitution is being offered by Democrats to counter recent U.S. Supreme Court decisions dealing with elections, but Republicans say it will repeal the First Amendment guaranteeing free speech.
The proposal was on a recent agenda of the Senate Committee on the Judiciary, whose Subcommittee on the Constitution, Civil Rights and Human Rights conducted a hearing earlier this month on “Examining a Constitutional Amendment to Restore Democracy to the American People.”
“Years ago, Congress passed campaign finance laws to preserve the integrity of the electoral process, to prevent and deter corruption and to limit the undue influence of the wealthy and special interests in the elections,” Sen. Patrick Leahy, D-Vt., told the subcommittee on June 3. “But five justices have now repeatedly overturned those common sense and time-honored protections through the Citizens United and McCutcheon cases.”
In Citizens United v. Federal Election Commission, 558 U.S. __, (2010: Docket 08-205), the high court found the First Amendment prohibits governments from restricting campaign spending by corporations, associations or labor unions through independent communications.
The more recent McCutcheon v. Federal Election Commission, 572 U.S. __, decided in April, overturned limits on aggregate federal campaign contributions.
Both were 5-4 decisions with Chief Justice John G. Roberts Jr. and Justices Antonin Scalia, Anthony M. Kennedy, Samuel Alito Jr. and Clarence Thomas making up the majority.
Leahy, who chairs the Senate Judiciary Committee, said the decisions opened the floodgates to billionaires pouring vast amounts of unfettered and undisclosed dollars into political campaigns across the country.
“Like most Vermonters, I strongly believe that we must address the divisive and corrosive decisions by the Supreme Court that have dismantled nearly every reasonable protection,” Leahy said. “But because the Supreme Court based its rulings on a flawed interpretation of the First Amendment, a statutory fix alone will not suffice.”
The proposed 28th Amendment, Senate Joint Resolution 19, calls for giving Congress and the states the power to regulate the raising and spending of money and in-kind equivalents in federal and state elections. It was introduced last June by Sen. Tom Udall, D-N.M.
Sen. Charles Grassley, R-Iowa, the Senate Judiciary Committee’s ranking minority member, said the proposal would threaten free speech.
Floyd McKissick Jr., a North Carolina attorney and member of his state’s Senate, talked about the impacts outside money has had on his state, particularly from one person, Art Pope, whom he said accounted for 75 percent of all outside political campaign contributions in 2010.
He said Pope, a North Carolina attorney and politician, was tied to a large portion of $8.1 million raised in 2012 in the governor’s race, and after his election, newly elected Gov. Pat McCrory named Pope as the state’s budget director.
McKissick, one of three witnesses testifying, said the budget Pope produced slashed corporate income taxes and lowered the share paid by the state’s wealthiest people while tens of thousands of people lost federal unemployment benefits, public education was dramatically cut, and 500,000 low-income people were refused access to already paid-for Medicaid benefits.
Floyd Abrams, a New York City attorney considered an expert in constitutional law, said it is no coincidence no Supreme Court ruling providing First Amendment protection has ever been reversed by a constitutional amendment.
He said the proposal would not reverse Citizens United, but the 1976 ruling in Buckley v. Valeo, 424 U.S. 1, which struck down several provisions of the 1974 Federal Election Campaign Act that limited campaign expenditures of individuals and groups.
“Emotions have run high before about decisions of the court, which provided higher levels of liberty than this body thought was appropriate,” he said. “But self-restraint won the day and I urge that self-restraint win the day today.”
Abrams, quoting Justice Roberts in McCutcheon, said “Money in politics may at times seem repugnant to some, but so too does much of what the First Amendment vigorously protects. If the First Amendment protects flag burning, funeral protests and Nazi parades — despite profound offense that such spectacles cause — it surely protects political campaign speech, despite popular opposition.”
The final witness, Jamin B. Raskin, a professor at American University Washington College of Law, said the American people have built two essential walls to protect the integrity of political democracy.
One is the separation of church and state; the other, separating plutocratic money from democratic politics. He noted restrictions on campaign contributions began with a 1907 ban that still stands, but said four years ago, the Supreme Court in Citizens United “bull-dozed” a major block of the wall that kept trillions of dollars in corporate wealth from flowing into campaigns.
He said McCutcheon then took a sledge hammer to aggregate contribution limits, “empowering tycoons to max out every member of Congress and all of their opponents.”
“After 5-4 decisions like these, the wall between democracy and plutocracy is crumbling,” Raskin said. “If we keep waiting around, the last few bricks will be removed soon including contribution limits, the ban on corporate contributions, rules against coordinated expenditures and the ban states have on writing campaign checks in legislative session — all of them at odds with Orwellian dogma of five justices, that money is speech, corporations are people and to identify corruption, you’ve got to find a bribe.”
Sen. Charles Schumer, D-N.Y., a co-sponsor of the proposed amendment,said he was “really surprised” at the level of rhetoric from Republican Sens. Mitch McConnell of Kentucky and Ted Cruz of Texas, the ranking minority member of the subcommittee.
McConnell said the proposed amendment would empower incumbent politicians in Congress and the states to write the rules on who gets to speak and who does not.
He said its goal is to stir up “one party’s political” base so they’ll turn out for the November elections and that it is being accomplished by complaining loudly about certain Americans exercising their free speech rights.
“The political nature of this exercise should not obscure how shockingly bad this proposal is,” McConnell said. “This is embarrassingly bad to be advocating for the first time in our history that we amend the First Amendment to restrict the rights of citizens to speak.”
Cruz said the proposal would repeal the free speech rights of Americans and give Congress absolute authority to regulate the political speech of every single American without limitation.
When citizens hear that, they gasp,” he said. “This amendment is about power and it is about politicians silencing the citizens.”
Schumer accused them of being over the top, replacing logic with hyperbole.
“Sen. McConnell says how shockingly bad this proposal is,” Schumer said. “I’ll tell you what most Americans think is shockingly bad — that our system has become distorted by a few who have a lot of money drowning out the voices of the others.
“Then Sen. Cruz said Americans would gasp if they heard what Democrats are trying to do. I’ll tell you what makes the American people gasp is that a small handful of people can have a huge effect on our political system. Most of the money that has come from the super (political action committees) and many of these other groups are knocking out incumbents, particularly those from the other side, whether they be Republican or Democrat.”
Schumer also argued emphatically that no amendment is absolute, noting free speech has been limited with laws against child pornography and falsely screaming “fire” in a public place, such as a theater.
“We have always had balancing tests for every amendment,” he said. “They are not absolute and to say that you cannot have some regulation when billions of dollars cascade into the system and that’s unconstitutional is false. It is against 200 years of tradition in this country. The First Amendment has always — has always — had a balancing test. It did then. It does now and if ever there was a balance needed, it is to restore some semblance of one-person, one-vote, some semblance of equality.”
Cruz said he is introducing two bills to further protect the rights of free speech of individuals: the Super PAC Elimination Act of 2014, which would eliminate campaign limits on individual contributions to federal candidates and provide immediate disclosure, making super PACs irrelevant; and the Free Speech for All Act, which would make any restrictions on free speech rights of individuals apply to the media and if found unconstitutional to the media, would be deemed invalid to citizens, as well.
Sen. Sheldon Whitehouse, D-R.I., called the real problem five Conservative activist judges who for the first time in the nation’s history decided that unlimited spending in elections is “A-OK.”
“I think that’s a real warning shot across the bow of this court that they need to stop being activists and start trying to find consensus and start trying to rebuild this,” he said.
A video of the more-than-three-hour hearing is available on the Senate Judiciary Committee’s website at www.judiciary.senate.gov.
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