[Senate Report 113-223]
[From the U.S. Government Publishing Office]
Calendar No. 471
113th Congress Report
SENATE
2d Session 113-223
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PROPOSING AN AMENDMENT TO THE CONSTITUTION OF THE UNITED STATES
RELATING TO CONTRIBUTIONS AND EXPENDITURES INTENDED TO AFFECT ELECTIONS
_______
July 30, 2014.--Ordered to be printed
_______
Mr. Leahy, from the Committee on the Judiciary,
submitted the following
R E P O R T
together with
MINORITY VIEWS
[To accompany S.J. Res. 19]
[Including cost estimate of the Congressional Budget Office]
The Committee on the Judiciary, to which was referred the
joint resolution (S.J. Res. 19), proposing an amendment to the
Constitution of the United States relating to contributions and
expenditures intended to affect elections, having considered
the same, reports favorably thereon, with an amendment, and
recommends that the joint resolution, as amended, do pass.
CONTENTS
Page
I. Purpose..........................................................2
II. Legislative History..............................................3
III. Discussion.......................................................7
A. A History of Expanding Democracy for All Americans
and Rejecting Plutocratic and Corporate Practices
that Undermine Popular Rule........................ 7
1. The Founders of Our Nation on Undue Influence and
Corruption....................................... 8
2. The Evolution of Our Nation's Campaign Finance
Legislation...................................... 9
3. Buckley v. Valeo.................................. 11
4. McCain-Feingold Bipartisan Campaign Reform Act
(BCRA)........................................... 12
5. McConnell v. FEC.................................. 13
B. The Supreme Court's Drastic Reversal and Departure
from a Century of Precedent........................ 13
1. FEC v. Wisconsin Right to Life.................... 13
2. Citizens United v. FEC............................ 15
a. Corporations Now Have the Political Speech
Rights of the People but Enjoy Extraordinary
Economic Benefits and Privileges............... 16
b. Overruling Well-Settled Precedent............... 18
3. McCutcheon v. FEC................................. 18
C. Fallout from the Supreme Court's Unprecedented
Decisions.......................................... 21
1. Massive Influx of Spending by Corporations and
Wealthy Donors................................... 21
2. Increase in Undisclosed Money..................... 24
IV. Text of S.J. Res. 19, as Reported...............................25
V. Section-By-Section Analysis of the Joint Resolution.............25
A. S.J. Res. 19 Allows for Regulation of Election-
Related Spending and Not Speech.................... 26
B. S.J. Res. 19 Preserves The Principles of Viewpoint
and Content Neutrality as well as Other
Constitutional Protections......................... 27
C. S.J. Res. 19 Advances Democratic Self-Government and
Is Not the first Constitutional Amendment to Upset
Powerful Interests Under the Constitution.......... 29
VI. Congressional Budget Office Cost Estimate.......................30
VII. Regulatory Impact Statement.....................................31
VIII.Conclusion......................................................31
IX. Minority Views of Senators Grassley, Hatch, Sessions, Graham,
Cornyn, Lee, Cruz, and Flake....................................33
X. Changes to Existing Law Made by the Joint Resolution, as Reporte41
I. PURPOSE
The purpose of Senate Joint Resolution 19 is to restore to
Congress and the States the authority to set reasonable limits
on financial contributions and expenditures intended to
influence our elections. Over the last decade, a narrow
majority of the United States Supreme Court has eviscerated
nearly every reasonable campaign finance law that protects
hardworking Americans and enables them to participate in our
democracy. The Court's radical and novel reinterpretation of
the First Amendment contradicts the principles of freedom,
equality, and self-government upon which this Nation was
founded. As a result of the Court's decisions, a small minority
of wealthy individuals and special interests have been able to,
and increasingly will be able to, drown out the voices of
ordinary Americans and skew both the electoral process and
public policy outcomes. This proposed amendment would restore
the First Amendment as the Founders intended and preserve the
protections that ensure all voices can be heard in the
democratic process.
S.J. Res. 19, as amended by Senator Richard Durbin's
substitute, provides as follows:
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.
The story of our Constitution is that it has gradually
evolved to ensure a more representative and inclusive
democracy. The 14th and 15th Amendments guaranteed equal
protection of the law for all Americans, and ensured that all
Americans have the right to vote regardless of their race. The
17th Amendment gave Americans the right to directly elect their
Senators in the wake of concerns that corporations and wealthy
individuals were corrupting State legislatures and leading them
to choose Senators beholden to moneyed interests. The 19th
Amendment's expansion of the right to vote to women and the
26th Amendment's extension of the vote to younger Americans
made ours an even more open and inclusive democracy. Guarding
and enhancing the access of citizens to the democratic process
is the subject of more amendments to the Constitution than any
other single issue. Accordingly, this proposed amendment is
consistent with the story of our Nation and of our
Constitution. It would restore the First Amendment to ensure
that it is interpreted to allow all Americans to participate in
our democracy.
II. LEGISLATIVE HISTORY
S.J. Res. 19 derives from previous Congressional proposals
to amend the Constitution after the Supreme Court's 1976
decision in Buckley v. Valeo,\1\ which invalidated key spending
provisions of the Federal Election Campaign Act of 1971. The
Court held unconstitutional the 1971 Act's limits on
independent expenditures in campaigns, the limitation on
expenditures by candidates from their own personal or family
resources, and the limitation on total campaign expenditures.
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\1\424 U.S. 1 (1976).
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During the 98th Congress, in response to Buckley's removal
of restraints on unlimited spending in Federal election
campaigns, and the deteriorating effect he believed those
unlimited campaign expenditures were having on Congress,
Senator Ted Stevens (R-AK), introduced S.J. Res. 110. This
proposed joint resolution would have amended the Constitution
of the United States by directing Congress to enact laws
limiting the amounts of contributions and expenditures made in
Federal elections.\2\ S.J. Res. 110 was referred to the Senate
Committee on the Judiciary, but the joint resolution did not
receive a vote in Committee or on the Senate floor.
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\2\129 Cong. Rec. S.14126 (May 26, 1983) (statement of Sen.
Stevens).
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During the 99th Congress, Senator Fritz Hollings (D-SC)
introduced S.J. Res. 313, a joint resolution proposing an
amendment to the Constitution of the United States with respect
to limiting expenditures in Congressional elections. S.J. Res.
313 was referred to the Senate Committee on the Judiciary, but
the joint resolution did not receive a vote in Committee or on
the Senate floor. S.J. Res. 313 was the first of a total of
fourteen joint resolutions that Senator Hollings introduced,
from the 99th to 108th Congresses, to amend the Constitution to
authorize the Congress to enact legislation regulating the
amounts of expenditures intended to affect elections.\3\
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\3\After introducing S.J. Res. 313 on March 27, 1986, Senator
Hollings introduced thirteen additional proposals in subsequent
Congresses: S.J. Res. 21, A joint resolution proposing an amendment to
the Constitution of the United States relative to contributions and
expenditures intended to affect congressional and Presidential
elections (January 20, 1987); S.J. Res. 282, A joint resolution
proposing an amendment to the Constitution of the United States
relative to contributions and expenditures intended to affect
Congressional and Presidential elections (March 29, 1988); S.J. Res.
48, A joint resolution proposing an amendment to the Constitution of
the United States relative to contributions and expenditures intended
to affect Congressional and Presidential elections (February 2, 1989);
S.J. Res. 35, A joint resolution proposing an amendment to the
Constitution of the United States relative to contributions and
expenditures intended to affect Congressional and Presidential
elections (January 14, 1991); S.J. Res. 10, A joint resolution
proposing an amendment to the Constitution relative to contributions
and expenditures intended to affect Congressional and Presidential
elections (January 21, 1993); S.J. Res. 37, A joint resolution
proposing an amendment to the Constitution relative to contributions
and expenditures intended to affect Congressional and Presidential
elections (January 28, 1993); S.J. Res. 18, A joint resolution
proposing an amendment to the Constitution relative to contributions
and expenditures intended to affect elections for Federal, State, and
local office (January 17, 1995); S.J. Res. 2, A joint resolution
proposing an amendment to the Constitution of the United States
relating to contributions and expenditures intended to affect elections
(January 21, 1997); S.J. Res. 18, A joint resolution proposing an
amendment to the Constitution of the United States relating to
contributions and expenditures intended to affect elections (February
27, 1997); S.J. Res. 6, A joint resolution proposing an amendment to
the Constitution of the United States relating to contributions and
expenditures intended to affect elections (December 19, 1999); S.J.
Res. 4, A joint resolution proposing an amendment to the Constitution
of the United States relating to contributions and expenditures
intended to affect elections (February 7, 2001); S.J. Res. 33, A joint
resolution proposing an amendment to the Constitution of the United
States relating to contributions and expenditures intended to affect
elections (March 4, 2002); S.J. Res. 5, A joint resolution proposing an
amendment to the Constitution of the United States relating to
contributions and expenditures intended to affect elections (January
23, 2003).
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On March 17, 1988, the Senate Judiciary Committee,
Subcommittee on the Constitution held a hearing to consider
proposed constitutional amendments to respond to the Buckley v.
Valeo decision that restrictions on campaign expenditures are
in violation of First Amendment guarantees of freedom of
speech. The Subcommittee considered the following proposed
constitutional amendments: S.J. Res. 21, to amend the
Constitution to permit Congress to limit campaign contributions
and expenditures in Federal elections; S.J. Res. 130 to amend
the Constitution to permit Congress to limit campaign
contributions and expenditures in Federal elections and permit
States to limit State and local campaign expenditures; and S.J.
Res. 166 to amend the Constitution to permit Congress and the
States to limit candidates' expenditure of personal funds in
campaigns and the expenditure of funds by individuals or
organizations other than political parties to support or oppose
candidates. Three witnesses testified at this hearing: Lloyd
Cutler, former White House Counsel to President Carter and
Chairman of the Committee on the Constitutional System; Walter
Dellinger, Professor of Law at Duke University School of Law;
and Joel Gora, Professor of Law at Brooklyn Law School and
testifying on behalf of the American Civil Liberties Union.
On February 28, 1990, the Senate Committee on the
Judiciary, Subcommittee on the Constitution held a hearing to
consider S.J. Res. 48, a proposed constitutional amendment to
respond to Buckley v. Valeo, which would authorize Congress and
the States to set limitations on political candidate campaign
expenditures. Two panels of witnesses testified at this
hearing. The first panel consisted of: Morton Halperin of the
American Civil Liberties Union; Robert Wood of the Committee on
the Constitutional System; and Dave Eppler, staff attorney for
Public Citizen's Congress Watch. The second panel consisted of:
Marlene Arnold Nicholson, Professor of Law at DePaul University
and Gerald Ashdown, Professor of Law at the West Virginia
University College of Law.
On February 27, 1992, the Senate Committee on the Judiciary
voted on S.J. Res. 35, a joint resolution sponsored by Senator
Hollings (D-SC) proposing an amendment to the Constitution of
the United States relative to contributions and expenditures
intended to affect Congressional and Presidential elections.
The Committee voted 9-5 in favor of this joint resolution.
The vote record is as follows:
Tally: 9 Yeas, 5 Nays
Yeas (9): Biden (D-DE), Kennedy (D-MA), Metzenbaum (D-OH),
DeConcini (D-AZ), Leahy (D-VT), Heflin (D-AL), Simon (D-IL),
Kohl (D-WI), Specter (R-PA)
Nays (5): Thurmond (R-SC), Hatch (R-UT), Simpson (R-WY),
Grassley (R-IA), Brown (R-CO)
The Committee reported S.J. Res. 35 to the Senate floor
where it did not receive a vote.
On February 27, 1997, Senator Hollings (D-SC) introduced
S.J. Res. 18, a joint resolution proposing an amendment to the
Constitution of the United States relating to contributions and
expenditures intended to affect elections. This joint
resolution was not referred to the Senate Committee on the
Judiciary. Instead, S.J. Res. 18 was given a vote on the Senate
floor on March 18, 1997. The joint resolution failed by a vote
of 38-61.\4\
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\4\Senators voting in the affirmative on S.J. Res. 18: Akaka (D-
HI), Baucus (D-MT), Biden (D-DE), Bingaman (D-NM), Boxer (D-CA), Breaux
(D-LA), Bryan (D-NV), Byrd (D-WV), Cleland (D-GA), Cochran (R-MS),
Conrad (D-ND), Daschle (D-SD), Dodd (D-CT), Dorgan (D-ND), Feinstein
(D-CA), Ford (D-KY), Glenn (D-OH), Graham (D-FL), Harkin (D-IA),
Hollings (D-SC), Inouye (D-HI), Jeffords (R-VT), Johnson (D-SD), Kerry
(D-MA), Landrieu (D-LA), Lautenberg (D-NJ), Levin (D-MI), Lieberman (D-
CT), Mikulski (D-MD), Murray (D-WA), Reed (D-RI), Reid (D-NV), Robb (D-
VA), Roth (R-DE), Sarbanes (D-MD), Specter (R-PA), Wellstone (D-MN),
Wyden (D-OR). Senators voting in the negative: Abraham (R-MI), Allard
(R-CO), Ashcroft (R-MO), Bennett (R-UT), Bond (R-MO), Brownback (R-KS),
Bumpers (D-AR), Campbell (R-CO), Chafee (R-RI), Coats (R-IN), Collins
(R-ME), Coverdell (R-GA), Craig (R-ID), D'Amato (R-NY), DeWine (R-OH),
Domenici (R-NM), Durbin (D-IL), Enzi (R-WY), Faircloth (R-NC), Feingold
(D-WI), Frist (R-TN), Gorton (R-WA), Gramm (R-TX). Grams (R-MN),
Grassley (R-IA), Gregg (R-NH), Hagel (R-NE), Hatch (R-UT), Helms (R-
NC), Hutchinson (R-AR), Hutchison (R-TX), Inhofe (R-OK), Kempthorne (R-
ID), Kennedy (D-MA), Kerrey (D-NE), Kohl (D-WI), Kyl (R-AZ), Leahy (D-
VT), Lott (R-MS), Lugar (R-IN), Mack (R-FL), McCain (R-AZ), McConnell
(R-KY), Moseley-Braun (D-IL), Moynihan (D-NY), Murkowski (R-AK),
Nickles (R-OK), Roberts (R-KS), Rockefeller (D-WV), Santorum (R-PA),
Sessions (R-AL), Shelby (R-AL), Smith (R-NH), Smith (R-OR), Snowe (R-
ME), Stevens (R-AK), Thomas (R-WY), Thompson (R-TN), Thurmond (R-SC),
Torricelli (D-NJ), Warner (R-VA).
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On February 7, 2001, Senator Hollings (D-SC) introduced
S.J. Res. 4, a joint resolution proposing an amendment to the
Constitution of the United States relating to contributions and
expenditures intended to affect elections, which was referred
to the Senate Committee on the Judiciary. The Committee
discharged this joint resolution by Unanimous Consent on March
26, 2001. The joint resolution received a vote on the Senate
floor on March 26, 2001. The measure failed by a vote of 40-
56.\5\
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\5\Senators voting in the affirmative for S.J. Res. 4: Bayh (D-IN),
Biden (D-DE), Bingaman (D-NM), Boxer (D-CA), Breaux (D-LA), Byrd (D-
WV), Cantwell (D-WA), Carnahan (D-MO), Carper (D-DE), Cleland (D-GA),
Clinton (D-NY), Cochran (R-MS), Conrad (D-ND), Daschle (D-SD), Dayton
(D-MN), Dodd (D-CT), Dorgan (D-ND), Durbin (D-IL), Feinstein (D-CA),
Graham (D-FL), Harkin (D-IA), Hollings (D-SC), Inouye (D-HI), Kerry (D-
MA), Levin (D-MI), Lieberman (D-CT), Lincoln (D-AR), McCain (R-AZ),
Mikulski (D-MD), Miller (D-GA), Murray (D-WA), Reed (D-RI), Reid (D-
NV), Rockefeller (D-WV), Sarbanes (D-MD), Schumer (D-NY), Specter (R-
PA), Stabenow (D-MI), Stevens (R-AK), Wyden (D-O). Senators voting in
the negative on S.J. Res. 4: Akaka (D-HI), Allen (R-VA), Bennett (R-
UT), Bond (R-MO), Brownback (R-KS), Bunning (R-KY), Campbell (R-CO),
Chafee (R-RI), Collins (R-ME), Corzine (D-NJ), Craig (R-ID), Crapo (R-
ID), DeWine (R-OH), Domenici (R-NM), Edwards (D-NC), Ensign (R-NV),
Enzi (R-WY), Feingold (D-WI), Fitzgerald (R-IL), Frist (R-TN), Gramm
(R-TX), Grassley (R-IA), Gregg (R-NH), Hagel (R-NE), Hatch (R-UT),
Helms (R-NC), Hutchinson (R-AR), Hutchison (R-TX), Inhofe (R-OK),
Jeffords (R-VT), Johnson (D-SD), Kennedy (D-MA), Kohl (D-WI), Kyl (R-
AZ), Leahy (D-VT), Lott (R-MS), Lugar (R-IN), McConnell (R-KY),
Murkowski (R-AK), Nelson (D-FL), Nelson (D-NE), Nickles (R-OK), Roberts
(R-KS), Santorum (R-PA), Sessions (R-AL), Shelby (R-AL), Smith (R-NH),
Smith (R-OR), Snowe (R-ME), Thomas (R-WY), Thompson (R-TN), Thurmond
(R-SC), Torricelli (D-NJ), Voinovich (R-OH), Warner (R-VA), Wellstone
(D-MN). Senators not voting on S.J. Res. 4: Allard (R-CO), Baucus (D-
MT), Burns (R-MT), Landrieu (D-LA).
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In the 110th Congress, Senators Charles Schumer (D-NY),
Thad Cochran (R-MS), Tom Harkin (D-IA), and Arlen Specter (D-
PA) introduced a joint resolution, S.J. Res. 21, a joint
resolution proposing an amendment to the Constitution of the
United States relating to contributions and expenditures
intended to affect elections, similar to those introduced in
the past by Senator Hollings. This joint resolution did not
receive a vote in the Senate Committee on the Judiciary or on
the Senate floor.
In the 111th Congress, Senator Chris Dodd (D-CT) and
Senator Tom Udall (D-NM) introduced S.J. Res. 28, a joint
resolution proposing an amendment to the Constitution of the
United States relating to contributions and expenditures
intended to affect elections. This joint resolution did not
receive a vote in the Senate Committee on the Judiciary or on
the Senate floor.
On November 11, 2011, in the 112th Congress, Senator Udall
(D-NM) introduced S.J. Res. 29, a joint resolution proposing an
amendment to the Constitution of the United States relating to
contributions and expenditures intended to affect elections.
Upon introduction of the bill, Senator Udall stated on the
Senate floor that, ``[a]s we head into another election year,
we are about to see unprecedented amounts of money spent on
efforts to influence the outcome of our elections. With the
Supreme Court striking down the sensible regulations Congress
has passed, I believe the only way to address the root cause of
this problem is by first amending the Constitution. Such an
amendment is not a new idea. Constitutional amendments to grant
Congress broad authority to regulate the campaign finance
system have been introduced many times in the past, and most
had bipartisan support. But last year's Supreme Court decision
in Citizens United v. FEC places a new emphasis on the need for
Congress to act.''\6\
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\6\157 Cong. Rec. S7007-S7008 (daily ed. November 1, 2011),
available at http://www.gpo.gov/fdsys/pkg/CREC-2011-11-01/pdf/CREC-
2011-11-01-pt1-PgS7007.pdf#page=2.
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On June 18, 2013, Senator Udall (D-NM) introduced S.J. Res.
19, a joint resolution proposing an amendment to the
Constitution of the United States relating to contributions and
expenditures intended to affect elections. Senators Michael
Bennet, Barbara Boxer, Chris Coons, Al Franken, Tom Harkin,
Angus King, Amy Klobuchar, Chris Murphy, Charles Schumer,
Jeanne Shaheen, Jon Tester, Debbie Stabenow, Mark Udall,
Sheldon Whitehouse, and Ron Wyden were original cosponsors. The
bill was referred to the Committee on the Judiciary.
The Committee held a hearing on S.J. Res. 19 on June 3,
2014. Testimony was received from Senator Majority Leader Harry
Reid; Senate Minority Leader Mitch McConnell; Floyd McKissick,
Jr., State Senator from North Carolina; Floyd Abrams, Partner
at Cahill Gordon & Reindel LLP; and Jamie Raskin, Professor of
Law and Director of the Law and Government Program at American
University, Washington College of Law.
The Committee's Subcommittee on the Constitution, Civil
Rights, and Human Rights considered S.J. Res. 19 on June 18,
2014. At that executive business meeting, Senator Dick Durbin
offered a substitute amendment to S.J. Res. 19 to provide that
any limits set by lawmakers on campaign money should be
``reasonable.'' The amendment also explicitly gives Congress
and the states the power to distinguish between people and
``corporations or other artificial entities created by law''
and to block such entities from spending money on elections. It
also makes other minor and technical revisions.
The amendment was accepted by a voice vote.
Senator Ted Cruz offered a substitute amendment to replace
the entire underlying proposal with the existing language of
the First Amendment to the Constitution.
The amendment was rejected by a roll call vote. The vote
record is as follows:
Tally: 4 Yeas, 5 Nays
Yeas (4): Hatch (R-UT), Graham (R-SC), Cornyn (R-TX), Cruz
(R-TX)
Nays (5): Durbin (D-IL), Franken (D-MN), Coons (D-DE),
Blumenthal (D-CT), Hirono (D-HI)
The Subcommittee on the Constitution, Civil Rights, and
Human Rights then voted to report S.J. Res. 19, with an
amendment in the nature of a substitute, favorably to the full
Committee. The Subcommittee proceeded by roll call vote as
follows:
Tally: 5 Yeas, 4 Nays
Yeas (5): Durbin (D-IL), Franken (D-MN), Coons (D-DE),
Blumenthal (D-CT), Hirono (D-HI)
Nays (4): Hatch (R-UT), Graham (R-SC), Cornyn (R-TX), Cruz
(R-TX)
The full Committee considered S.J. Res. 19 on July 10,
2014. Senator Cruz offered a substitute amendment to replace
the entire underlying proposal with the existing language of
the First Amendment to the Constitution.
The amendment was rejected by a roll call vote. The vote
record is as follows:
Tally: 8 Yeas, 10 Nays
Yeas (8): Grassley (R-IA), Hatch (R-UT), Sessions (R-AL),
Graham (R-SC), Cornyn (R-TX), Lee (R-UT), Cruz (R-TX), Flake
(R-AZ)
Nays (10): Leahy (D-VT), Feinstein (D-CA), Schumer (D-NY),
Durbin (D-IL), Whitehouse (D-RI), Franken (D-MN), Klobuchar (D-
MN), Coons (D-DE), Blumenthal (D-CT), Hirono (D-HI)
The Committee then voted to report S.J. Res. 19, as amended
by the Subcommittee on the Constitution, Civil Rights, and
Human Rights, favorably to the Senate. The Committee proceeded
by roll call vote as follows:
Tally: 10 Yeas, 8 Nays
Yeas (10): Leahy (D-VT), Feinstein (D-CA), Schumer (D-NY),
Durbin (D-IL), Whitehouse (D-RI), Franken (D-MN), Klobuchar (D-
MN), Coons (D-DE), Blumenthal (D-CT), Hirono (D-HI)
Nays (8): Grassley (R-IA), Hatch (R-UT), Sessions (R-AL),
Graham (R-SC), Cornyn (R-TX), Lee (R-UT), Cruz (R-TX), Flake
(R-AZ)
III. DISCUSSION
A. A history of expanding democracy for all Americans and rejecting
plutocratic and corporate practices that undermine popular rule
S.J. Res. 19 seeks to restore balance to campaign finance
by affirming the power that Congress and State legislatures
have always held, and often used, to pass laws governing money
in politics. These legislatures passed such laws to help
preserve the integrity of the electoral process, to prevent and
deter corruption, and to limit the undue influence of wealthy
individuals and special interests in our elections. History
shows that the Founders and subsequent representatives were
deeply concerned with these issues.
1. The founders of our Nation on undue influence and
corruption
A broad view of corruption has guided American policy-
making and jurisprudence since the framing of the Constitution.
The Founders were equally concerned about the adverse effects
of undue influence, dependent relationships, and quid pro quo
corruption on the republican form of government at the State
and Federal levels. At the Constitutional Convention,
corruption was a topic of discussion on nearly 25 percent of
the days on which members convened.\7\ To the Founders,
corruption could appear in many forms--not simply as a
violation of criminal laws, but also in subtler forms of self-
aggrandizement through lawful and structural means.\8\ As such,
the Founders referred to corruption a majority of the time as
that which was ``predicated of an entity, not an
individual.''\9\
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\7\Zephyr Teachout, The Anti-Corruption Principle, 94 Cornell L.
Rev. 341, 352-53 (2009).
\8\See id. at 373-74.
\9\Lawrence Lessig, ``Corruption,'' Originally: About (2013-14)
(accessed July 23, 2014), available at ocorruption.tumblr.com/
about.html.
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Founder Gouverneur Morris noted not only that ``[w]ealth
tends to corrupt the mind[,] . . . to nourish its love of
power, and to stimulate it to oppression,'' but also that
``[t]he check provided in the [second] branch was not meant as
a check on Legislative usurpations of power, but on the abuse
of lawful powers. . . .''\10\ The word ``corrupt'' could even
be used in reference to a law itself, for instance when William
Davie discussed the possibility of legislators making ``corrupt
laws'' at the North Carolina convention in 1788.\11\ Richard
Henry Lee took care to distinguish between general corruption
and specific bribery during his remarks at the Virginia
convention regarding the British House of Commons, which he
deemed ``undermined by corruption in every age, and
contaminated by bribery even in this enlightened age. . .
.''\12\
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\10\Notes of James Madison (July 19, 1787), in 2 The Records of the
Federal Convention of 1787, at 52.
\11\William Davie, 4 The Debates in the Convention of the State of
North Carolina, at 59 (Jonathan Elliot ed. 1827), available at http://
memory.loc.gov/ammem/amlaw/lwed.html.
\12\Richard Lee, 3 Debates in the Several State Conventions on the
Adoption of the Federal Constitution, at 43 (Jonathan Elliot ed. 1827).
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James Madison's writings in The Federalist Papers also
evince concern about a broad form of corruption that could take
root among legislators--that a lawmaker's duties might be
``diverted from him by the intrigues of the ambitious or the
bribes of the rich.''\13\
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\13\The Federalist No. 57 (Madison).
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The specific issue of undue influence in the election of
public officials received its due share of debate. Charles
Pinckney argued at the South Carolina convention in 1788 that
the size of an electorate was inversely proportional to the
probability of corruption: ``If a small district sent a member
[to the House of Representatives], there would be frequent
opportunities for cabal and intrigue: but if the sphere of
election is enlarged, then opportunities must necessarily
diminish.''\14\ James Madison, in Federalist No. 57, sounded a
similar note, and specifically discussed the influence of big
money:
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\14\Charles Pinckney, 4 Debates in the Legislature and in
Convention of the State of South Carolina, at 302 (Jonathan Elliot ed.
1827).
Who are to be the electors of the federal
representatives? Not the rich, more than the poor; not
the learned, more than the ignorant; not the haughty
heirs of distinguished names, more than the humble sons
of obscure and unpropitious fortune. The electors are
to be the great body of the people of the United
States.\15\
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\15\The Federalist No. 57 (Madison).
While a good portion of the Framers' discussion of
corruption and undue influence concerned foreign governments,
the historical evidence above demonstrates a high level of
concern over the undue influence of moneyed interests, a
foundational concern which continues to this day.
2. The evolution of our Nation's campaign finance
legislation
The modern era of campaign finance legislation began at the
turn of the 20th century, by which point popular concern
regarding the concentration of money in State and national
campaigns had grown.\16\ President Theodore Roosevelt was a
strong proponent of reform, with a particular eye toward
limiting the reach of the largest corporations. In his 1902
State of the Union address, President Roosevelt affirmed the
importance of corporations in the modern industrial landscape,
but was ``determined that they shall be so handled as to
subserve the public good.''\17\
---------------------------------------------------------------------------
\16\See Melvin I. Urofsky, Campaign Finance Reform Before 1971, 1
Alb. Gov't L. Rev. 1, 13-14 (2008).
\17\President Theodore Roosevelt, State of the Union Address (Dec.
2, 1902).
---------------------------------------------------------------------------
After President Roosevelt's victory in the election of
1904, courtroom testimony revealed that high-powered officers
at New York insurance companies had been funneling policy-
holders' assets into donations to the Republican National
Committee since 1896.\18\ President Roosevelt, who was also
known for his rigorous enforcement of antitrust law against
large corporations, perceived the necessity for reform. He
called on Congress to address the issues of corporate
malfeasance and undue influence on elections,\19\ which this
scandal had shown to be intertwined.
---------------------------------------------------------------------------
\18\Id. at 14.
\19\Id. at 15-16; see also Robert E. Mutch, Campaigns, Congress,
and Courts: The Making of Federal Campaign Finance Law 3-6 (1988).
---------------------------------------------------------------------------
Congress's efforts led to the passage of the Tillman Act,
ch. 420, 34 Stat. 864 (1907), which ``prohibited federally
chartered corporations and national banks from contributing
money to Federal campaigns.''\20\
---------------------------------------------------------------------------
\20\Fed. Election Comm'n, Appendix 4: The Federal Election Campaign
Laws: A Short History (accessed July 21, 2014), available at http://
www.fec.gov/info/appfour.htm.
---------------------------------------------------------------------------
Two years before his campaign for a third term, Roosevelt
gave another speech in which he declared that ``our government,
National and State, must be freed from the sinister influence
or control of special interests . . . [which] too often control
and corrupt the men and methods of government for their own
profit.''\21\ He further stated that ``[t]here can be no
effective control of corporations while their political
activity remains'' and that ``laws should be passed to prohibit
the use of corporate funds directly or indirectly for political
purposes'' because corporate political expenditures are ``one
of the principle sources of corruption in our political
affairs.''\22\
---------------------------------------------------------------------------
\21\Theodore Roosevelt, Speech on The New Nationalism in
Osawatomie, Kansas (Aug. 31, 1910).
\22\Id.
---------------------------------------------------------------------------
Around the turn of the 20th century, there were also a
series of corruption scandals that shook the U.S. Senate.
Senator William A. Clark of Montana, a copper mining baron,
resigned after it was discovered that he had made a ``personal
disbursement'' of over $140,000 to Montana State
legislators.\23\ The Senate expelled Senator William Lorimer of
Illinois in 1912 for bribing four State legislators to vote for
his election.\24\ During the 58th Congress (1903-05), ten
percent of U.S. Senators were either the subjects of
legislative investigations or were put on trial for corruption.
---------------------------------------------------------------------------
\23\See Ralph A. Rossum, The Irony of Constitutional Democracy:
Federalism, The Supreme Court, and the Seventeenth Amendment, 36 San.
Diego L. Rev. 671, 707 (1999).
\24\See id.
---------------------------------------------------------------------------
In 1911, text that would ultimately become the Seventeenth
Amendment was proposed by Senator Joseph Bristow of Kansas in
response to these and other scandals. Senator Bristow was
specifically concerned with the corruption that corporate
interests had caused in the U.S. Senate:
With the development during recent times of the great
corporate interests of the country, and the increased
importance of legislation relating to their affairs,
they have tenaciously sought to control the election of
Senators friendly to their interests. . . .
The power of these great financial and industrial
institutions can be very effectively used in the
election of Senators by legislatures, and they have
many times during recent years used that power in a
most reprehensible and scandalous manner. They have
spent enormous amounts of money in corrupting
legislatures to elect to the Senate men of their own
choosing.\25\
---------------------------------------------------------------------------
\25\Sen. Joseph Bristow, The Direct Election of Senators, in
Congressional Serial Set Issue 6177 (U.S. G.P.O. 1912).
William Jennings Bryan similarly argued for the Amendment,
explaining that ``great corporations . . . are able to compass
the election for their tools and their agents through the
instrumentality of Legislatures, as they could not if Senators
were elected directly by the people.''\26\ In 1913, the 17th
Amendment was formally adopted.
---------------------------------------------------------------------------
\26\26 Cong. Rec. 7775 (1894); see also 28 Cong. Rec. 1520 (1896)
(statement of Sen. Turpie); 23 Cong. Rec. 3194 (1892) (statement of
Sen. Chandler); id. at 6063 (statement of Rep. Tucker); id. at 6068
(statement of Rep. Gantz).
---------------------------------------------------------------------------
The next generation of laws, including the Federal Corrupt
Practices Act, 43 Stat. 1070 (1925), and the Hatch Act of 1939,
5 U.S.C. 7321-7326, responded to the public outcry over
scandals. There was the Teapot Dome scandal, where Secretary of
the Interior Albert Fall accepted a bribe and leased Navy
petroleum reserves to private oil companies at low rates
without competitive bidding. There was concern that New Deal
programs might be used for political activities. In response to
these incidents and concerns, Congress passed legislation that
created disclosure requirements for candidates and party
committees as well as limits on campaign contributions to and
expenditures by the parties.\27\ The Taft-Hartley Act, Pub.L.
80-101 (1947), fortified prohibitions on expenditures and
contributions by labor unions' and corporations' relating to
Federal elections.
---------------------------------------------------------------------------
\27\See Urofsky, supra note 16, at 20, 25.
---------------------------------------------------------------------------
These laws, however, established an ineffective regulatory
framework that candidates and committees were able to
circumvent through loopholes and lack of enforcement.\28\ For
example, despite the existence of the Tillman Act, corporate
executives would make large contributions for which they would
be reimbursed by their companies, or would simply ignore the
Act's bans by reaching into the corporate treasury and sending
money to campaign committees. The lack of enforcement meant
that there was virtually no fear of indictment.\29\
---------------------------------------------------------------------------
\28\See id. at 28-31.
\29\See id. at 29.
---------------------------------------------------------------------------
Meanwhile, the cost of campaigns became more and more
prohibitive throughout the 1950s and 1960s. As a result,
candidates had to constantly engage in fundraising for their
next campaigns.\30\ Congress attempted to respond to the
loopholes, lack of enforcement, and increasing costs of running
for office on several occasions, but failed.\31\ It was not
until the Watergate scandal that conditions finally became ripe
for further reform.
---------------------------------------------------------------------------
\30\See id. at 31-32.
\31\See id. at 46.
---------------------------------------------------------------------------
In 1971, Congress had enacted disclosure requirements by
passing the Federal Election Campaign Act (FECA), Pub.L. 92-225
(1971). It was not, however, until the 1974 post-Watergate
amendments to the FECA, Federal Election Campaign Act
Amendments, Pub.L. 93-443 (1974), that Congress could really be
said to have mounted a systematic campaign against electoral
corruption. President Nixon's re-election strategy of bypassing
party committees and seeking contributions from wealthy
donors--magnified in public salience by the general outrage
over the Watergate break-in and other crimes\32\--provided
Congress with the case for placing tighter limits on
expenditures, including a $1,000 limit on contributions to any
candidate for a primary, run-off, or general election, $5,000
to any political organization or committee, and a maximum of
$25,000 to all candidates for Federal office in any election
cycle.\33\ Presidential candidates could not spend more than
$10 million in the primaries or $20 million in general
elections, House candidates had a $70,000 primary and general
limit on spending, and Senate candidates had a $100,000 primary
and $150,000 general limit on spending.\34\ The 1974 amendments
also created the Federal Election Commission (FEC), an
independent regulatory agency designed to enforce campaign
finance provisions.
---------------------------------------------------------------------------
\32\Urofsky, supra note 16, at 51-53, 55-56; see also David
Schultz, Proving Political Corruption: Documenting the Evidence
Required to Sustain Campaign Finance Reform Laws, 18 Rev. Litig. 85,
91-92 (1999).
\33\FECA Amendments Sec. 101.
\34\Id.
---------------------------------------------------------------------------
3. Buckley v. Valeo
In 1976, the Supreme Court considered a First Amendment
challenge to FECA in Buckley v. Valeo.\35\ The Court's Buckley
decision resulted in a set of compromise doctrines that drew
questionable distinctions between the constitutional validity
of limitations on campaign contributions on the one hand and
limitations on campaign-related expenditures on the other.
---------------------------------------------------------------------------
\35\424 U.S. 1 (1976).
---------------------------------------------------------------------------
Analyzing FECA, the Court acknowledged that the ``actuality
and appearance of corruption resulting from large individual
financial contributions'' is a ``constitutionally sufficient
justification for'' limiting the amount of money that
individuals can contribute to political campaigns.\36\ However,
the Court struck down limitations on individual expenditures
``relative to a clearly identified candidate'' and limitations
on campaign spending by candidates for various Federal offices,
finding that ``the interest in alleviating the corrupting
influence of large contributions'' is ``clearly not sufficient
to justify the provision's infringement of fundamental First
Amendment rights.''\37\
---------------------------------------------------------------------------
\36\Id. at 27.
\37\Id. at 56.
---------------------------------------------------------------------------
Buckley thus upheld an infrastructure of modest campaign
finance regulations. But in so doing, it placed significant
limitations on the scope and creativity of any future campaign
finance efforts, thereby undercutting legislative efforts to
protect against corruption and maintain the ``integrity of our
system of representative democracy.''\38\
---------------------------------------------------------------------------
\38\Id. at 27.
---------------------------------------------------------------------------
4. McCain-Feingold Bipartisan Campaign Reform Act (BCRA)
Until the McCain-Feingold Bipartisan Campaign Reform Act
(BCRA), Pub.L. 107-155 (2002), was enacted, the intervening
years were marred by large donors' increasing abuse of FECA
exceptions, loopholes that allowed for unlimited spending on
grass-roots activities (soft money had grown from $86 million
in 1992 to $495 million in 2000), and the unlimited
broadcasting of so-called issue advertisements that were the
functional equivalent of advertisements urging the support or
defeat of candidates for election. BCRA, which was the most
significant reform of campaign finance since the 1970s, was a
reaction to these problems.\39\
---------------------------------------------------------------------------
\39\See Gregory Comeau, Bipartisan Campaign Reform Act, 40 Harv. J.
on Legis. 253, 260-62 (2003).
---------------------------------------------------------------------------
The Act, which amended FECA, eliminated soft money
donations--those donations that do not go directly to the
candidate, but are directed instead to national party
committees--and limited fundraising by candidates and
incumbents on behalf of committees or other candidates.\40\ The
Act also banned the use of corporate or union money for
electioneering communications (advertisements referring to a
Federal candidate in the context of a political issue without
explicitly supporting or attacking the candidate) within thirty
days of a primary or sixty days of a general election.\41\
Another key piece of the BCRA framework was a set of rules
governing coordinated and independent expenditures.\42\ These
rules were flexible and allowed campaigns to grow in
sophistication, duration, and magnitude. BCRA made room for
corporate and PAC spending in issue advertising and contained
exemptions permitting several forms of electioneering
materials.\43\
---------------------------------------------------------------------------
\40\Bipartisan Campaign Reform Act, Pub.L. 107-155 (2002),
Sec. 101.
\41\Id. Sec. 201.
\42\Id. Sec. 213-214.
\43\See Citizens United v. Federal Election Comm'n, 558 U.S. 310,
415-17 (2010) (Stevens, J., dissenting).
---------------------------------------------------------------------------
5. McConnell v. FEC
In 2003, the Supreme Court heard and upheld a challenge to
BCRA in McConnell v. Federal Election Commission.\44\ The
opinion of the Court, in relevant part, was delivered by
Justices Stevens and O'Connor and joined by Justices Souter,
Ginsburg, and Breyer. Drawing on a substantial record, the
Court observed that large, soft money contributions may give
rise to corruption or the appearance of corruption. The Court
noted, for example, that ``in 1996 and 2000, more than half of
the top 50 soft-money donors gave substantial sums to both
major national parties, leaving room for no other conclusion
but that these donors were seeking influence, or avoiding
retaliation, rather than promoting any particular
ideology.''\45\
---------------------------------------------------------------------------
\44\540 U.S. 93 (2003).
\45\Id. at 148.
---------------------------------------------------------------------------
Quoting the 1990 case, Austin v. Michigan Chamber of
Commerce, the Court observed that in addition to upholding laws
that were justified by a legislative interest in combatting
corruption or the appearance of corruption, it had also
``repeatedly sustained legislation aimed at `the corrosive and
distorting effects of immense aggregations of wealth that are
accumulated with the help of the corporate form and that have
little or no correlation to the public's support for the
corporation's political ideas.'''\46\ The Court emphasized that
``[j]ust as troubling to a functional democracy as classic quid
pro quo corruption is the danger that officeholders will decide
issues not on the merits or the desires of their
constituencies, but according to the wishes of those who have
made large financial contributions valued by the
officeholder.''\47\
---------------------------------------------------------------------------
\46\Id. at 205 (quoting Austin v. Michigan Chamber of Commerce, 494
U.S. 652, 660 (1990)).
\47\Id. at 153.
---------------------------------------------------------------------------
Campaign finance laws like FECA and BCRA, the Court
recognized, do not undermine free speech rights, but rather,
take aim at the inappropriate influence of moneyed interests,
influence that in turn destabilizes ``the integrity of our
electoral process.''\48\
---------------------------------------------------------------------------
\48\Id. at 153 (internal citation omitted).
---------------------------------------------------------------------------
B. The Supreme Court's drastic reversal and departure from a century of
precedent
1. FEC v. Wisconsin Right to Life
In a 2007 split decision in Federal Election Commission v.
Wisconsin Right to Life,\49\ the Court--which now had two new
members--struck down an application of the very law it had
upheld four years earlier in McConnell. Wisconsin Right to Life
had used its general treasury funds to pay for political ads
that criticized Wisconsin's senators for participating in a
filibuster to block confirmation of President Bush's judicial
nominees. It hoped to run these ads within thirty days of the
Wisconsin primary--a move that would have violated Section 203
of BCRA, which prohibits electioneering communications by
corporations and labor unions paid out of treasury funds within
30 days of a primary election. The controlling opinion, which
held that the specific application of Section 203 was
unconstitutional as applied--as opposed to it being
unconstitutional in all circumstances--was signed only by the
Court's two newest justices, Chief Justice Roberts and Justice
Alito.
---------------------------------------------------------------------------
\49\551 U.S. 449 (2007).
---------------------------------------------------------------------------
The Court's controlling opinion contorted McConnell in an
effort to distinguish it and thereby weaken Section 203. It
applied strict scrutiny to BCRA and held that the government
lacked the requisite compelling state interest in regulating
advertisements, like Wisconsin Right to Life's, that, to the
Justices, were neither express advocacy nor its functional
equivalent. This created a formalist, easy-to-circumvent,
``magic words''\50\ test for determining which advertisements
were or were not prohibited by BCRA. Essentially, unless an
advertisement specifically stated that one should vote for or
against a candidate, it would not be considered express
advocacy or its functional equivalent and could not be
regulated.
---------------------------------------------------------------------------
\50\See, e.g., Federal Election Comm'n v. Wisconsin Right to Life,
Inc. 551 U.S. 449, 531 (2007) (Souter, J., dissenting).
---------------------------------------------------------------------------
Wisconsin Right to Life therefore imposed a high barrier to
regulating the campaign-related financial activities of
corporations and unions. As the dissent noted, ``the ban on
contributions by corporations and unions and the limitation on
their corrosive spending when they enter the political arena
are open to easy circumvention, and the possibilities for
regulating corporate and union campaign money are
unclear.''\51\ Moreover, the decision ``[t]hreaten[ed] the
capacity of this democracy to represent its constituents and
the confidence of its citizens in their capacity to govern
themselves.''\52\
---------------------------------------------------------------------------
\51\Id. at 536 (Souter, J., dissenting).
\52\Id. at 507 (Souter, J., dissenting).
---------------------------------------------------------------------------
The result, as the dissent explained, is that the moneyed
few get ``special access to the officials they help elect, and
with it a disproportionate influence on those in power.''\53\
Moreover, the American voters know this: The
---------------------------------------------------------------------------
\53\Id. at 506 (Souter, J., dissenting).
[The] consequence of the demand for big money to
finance publicity: pervasive public cynicism. A 2002
poll found that 71 percent of Americans think Members
of Congress cast votes based on the views of their big
contributors, even when those views differ from the
Member's own beliefs about what is best for the
country. . . . The same percentage believes that the
will of contributors tempts Members to vote against the
majority view of their constituents. . . . Almost half
of Americans believe that Members often decide how to
vote based on what big contributors to their party
want, while only a quarter think Members often base
their votes on perceptions of what is best for the
country or their constituents.\54\
---------------------------------------------------------------------------
\54\Id. at 507 (Souter, J., dissenting).
Justices Scalia, joined by Justices Kennedy and Thomas,
concurred in the judgment. The three Justices disagreed with
the controlling opinion's approach and would have simply
overturned McConnell and struck Section 203(a) in its entirety.
In a footnote, Justice Scalia accused his new colleagues of
---------------------------------------------------------------------------
hiding the ball. He wrote:
[T]he principal opinion's attempt at distinguishing
McConnell is unpersuasive enough, and the change in the
law it works is substantial enough, that seven Justices
of this Court, having widely divergent views concerning
the constitutionality of the restrictions at issue,
agree that the opinion effectively overrules McConnell
without saying so. . . . This faux judicial restraint
is judicial obfuscation.\55\
---------------------------------------------------------------------------
\55\Fed. Election Com'n v. Wisconsin Right To Life, Inc., 551 U.S.
449, 499 n.7 (2007) (Scalia, J., concurring in judgment).
The four dissenting Justices, Justices Souter, Stevens,
Ginsburg, and Breyer, emphasized that the facts before the
Court were no different than those presented in McConnell.\56\
In an opinion authored by Justice Souter, the dissenting
Justices emphasized that ``[t]he principal opinion . . . stands
McConnell on its head''\57\ and ``produces the result of
overruling McConnell's holding on Sec. 203, less than four
years in the Reports.''\58\ Observing that ``there is no
justification for departing from our usual rule of stare
decisis here,'' Justice Souter wrote that the ``price of
McConnell's demise as authority on Sec. 203 seems to me to be a
high one. The Court (and, I think, the country) loses when
important precedent is overruled without good reason.''\59\
---------------------------------------------------------------------------
\56\See id. at 535 (Souter, J., dissenting).
\57\Id. at 526-27 (Souter, J., dissenting).
\58\Id. at 533 (Souter, J., dissenting).
\59\Id. at 534 (Souter, J., dissenting).
---------------------------------------------------------------------------
2. Citizens United v. FEC
Just a few years later, the Court would explicitly do what
it implicitly began to do in Wisconsin Right to Life. In the
2010 case, Citizens United v. Federal Election Commission,\60\
the Court departed from principles of judicial restraint and
decided to overturn an act of Congress under the broadest
grounds possible. In so doing, it overruled a century of
practice and decades of doctrine. The Court rejected the
longstanding understanding of the First Amendment as democracy-
facilitating\61\ and replaced it with an interpretation that
injects into the First Amendment a poison pill for ``our system
of representative democracy.''\62\
---------------------------------------------------------------------------
\60\558 U.S. 310 (2010).
\61\See generally id., 425-446 (2010) (Stevens, J., dissenting)
(describing this history).
\62\Buckley v. Valeo, 424 U.S. 1, 26-27 (1976).
---------------------------------------------------------------------------
As Justice Stevens detailed in his 90-page dissenting
opinion, the questions that the Court resolved in the case were
not properly brought before it. In its jurisdictional statement
before the Supreme Court, Citizens United wrote that it brought
only ``an as-applied challenge to the constitutionality of . .
. BRCA 203.''\63\ This was because, in its motion for summary
judgment at the District Court, Citizens United had ``expressly
abandoned''\64\ its original facial challenge, and the parties
had stipulated to the dismissal of the claim.\65\ Moreover,
``not one of the questions presented suggested that Citizens
United was surreptitiously raising the facial challenge to
203'' or that it was ``rais[ing] an issue based on Citizen
United's corporate status.''\66\ But, as Justice Stevens
explained, ``[e]ssentially, five Justices were unhappy with the
limited nature of the case before us, so they changed the case
to give themselves an opportunity to change the law,''\67\
subverting basic principles of judicial restraint in so
doing.\68\ Under pressure, those Justices who were intent on
effectuating a sea-change in First Amendment jurisprudence
acquiesced to holding a second set of arguments on the facial
challenge to BCRA.\69\ But even with this second set of
arguments, the record remained undeveloped; the lower courts
had heard the case as an as-applied challenge. In a fit of
judicial activism, the Court rendered its momentous decision
``on the basis of pure speculation'' and with no record to fill
the ``gaping empirical hole'' with which it was confronted.\70\
---------------------------------------------------------------------------
\63\Jurisdictional Statement at 5, Citizens United v. Fed. Election
Comm'n, 558 U.S. 310 (2010) (No. 08-205).
\64\Citizens United v. Fed. Election Comm'n, 558 U.S. 310, 396-97
(2010) (Stevens, J, dissenting); Citizens United v. Federal Election
Comm'n, Case No. 07-cv-2240-RCL-RWR, Docket Entry No. 52, pp. 1-2 (May
16, 2008).
\65\Citizens United v. Federal Election Comm'n, Case No. No. 07-cv-
2240-RCL-RWR, Docket Entry Nos. 53 (May 22, 2008), 54 (May 23, 2008),
App. 6a.
\66\Citizens United v. Fed. Election Comm'n, 558 U.S. 310, 397
(2010) (Stevens, J, dissenting).
\67\Id. (Stevens, J, dissenting).
\68\See Washington State Grange v. Washington State Republican
Party, 552 U.S. 442, 450 (2008) (resorting to a facial inquiry
unnecessarily ``run[s] contrary to the fundamental principle of
judicial restraint that courts should neither anticipate a question of
constitutional law in advance of the necessity of deciding it nor
formulate a rule of constitutional law broader than is required by the
precise facts to which it is to be applied''); Citizens United v. Fed.
Election Comm'n, 558 U.S. 310, 398-99 (2010) (Stevens, J., dissenting).
\69\See Jeffrey Toobin, Money Unlimited: How Chief Justice Roberts
Orchestrated the Citizens United Decision, New Yorker, May 21, 2012,
available at http://www.newyorker.com/magazine/2012/05/21/money-
unlimited.
\70\Citizens United v. Fed. Election Comm'n, 558 U.S. 310, 399, 400
(2010) (Stevens, J, dissenting).
---------------------------------------------------------------------------
With its overly broad decision, the Court overturned more
than a century of established practice and decades of Court
precedent\71\ to proscribe reasonable efforts to protect our
representative democracy from what the Framers described as the
corrupting influences that sever the ``chain of communication
between the people, and those, to whom they have committed the
exercise of the powers of government.''\72\
---------------------------------------------------------------------------
\71\Id. (Stevens, J, dissenting) (``The majority's approach to
corporate electioneering marks a dramatic break from our past. Congress
has placed special limitations on campaign spending by corporations
ever since the passage of the Tillman Act in 1907, ch. 420, 34 Stat.
864. We have unanimously concluded that this `reflects a permissible
assessment of the dangers posed by those entities to the electoral
process,' FEC v. National Right to Work Comm., 459 U.S. 197, 209, 103
S.Ct. 552, 74 L.Ed.2d 364 (1982) (NRWC), and have accepted the
`legislative judgement that the special characteristics of the
corporate structure require particularly careful regulation,' id., at
209-210, 103 S.Ct. 552. The Court today rejects a century of history
when it treats the distinction between corporate and individual
campaign spending as an invidious novelty born of Austin v. Michigan
Chamber of Commerce, 494 U.S. 652, 110 S.Ct. 1391, 108 L.Ed.2d 652
(1990). Relying largely on individual dissenting opinions, the majority
blazes through our precedents, overruling or disavowing a body of case
law including FEC v. Wisconsin Right to Life, Inc., 551 U.S. 449, 127
S.Ct. 2652, 168 L.Ed.2d 329 (2007) (WRTL), McConnell v. FEC, 540 U.S.
93, 124 S.Ct. 619, 157 L.Ed.2d 491 (2003), FEC v. Beaumont, 539 U.S.
146, 123 S.Ct. 2200, 156 L.Ed.2d 179 (2003), FEC v. Massachusetts
Citizens for Life, Inc., 479 U.S. 238, 107 S.Ct. 616, 93 L.Ed.2d 539
(1986) (MCFL), NRWC, 459 U.S. 197, 103 S.Ct. 552, 74 L.Ed.2d 364, and
California Medical Assn. v. FEC, 453 U.S. 182, 101 S.Ct. 2712, 69
L.Ed.2d 567 (1981).'').
\72\J. Wilson, Commentaries on the Constitution of the United
States of America 30-31 (1792).
---------------------------------------------------------------------------
As a matter of doctrine, the Court in Citizens United
advanced two extreme and highly questionable positions. First,
it held--for the first time in its history--that corporations
have the same political speech rights to spend money in
electoral campaigns as humans and would not allow for any
distinction between the two. Second, the Court substantially
narrowed the types of corruption that campaign finance
legislation may target, leaving large swaths of toxic,
financial activities wholly outside of permissible State or
Federal regulation.
a. Corporations now have the political speech rights of
the people but enjoy extraordinary economic
benefits and privileges
In his dissent, Justice Stevens offered a vigorous response
to the Court's claim that the First Amendment demands that
``the Government . . . not suppress political speech on the
basis of the speaker's corporate identity'':
At the federal level, the express distinction between
corporate and individual political spending on
elections stretches back to 1907, when Congress passed
the Tillman Act, ch. 420, 34 Stat. 864, banning all
corporate contributions to candidates. The Senate
Report on the legislation observed that ``[t]he evils
of the use of [corporate] money in connection with
political elections are so generally recognized that
the committee deems it unnecessary to make any argument
in favor of the general purpose of this measure. It is
in the interest of good government and calculated to
promote purity in the selection of public officials.''
S.Rep. No. 3056, 59th Cong., 1st Sess., 2 (1906).\73\
---------------------------------------------------------------------------
\73\Citizens United v. Fed. Election Comm'n, 558 U.S. 310, 433
(2010) (Stevens, J., dissenting).
As Justice Stevens likewise documented at length, treating
corporations and individuals as indistinguishably protected by
the First Amendment contravenes the Amendment's original
purpose and design.\74\
---------------------------------------------------------------------------
\74\Id. at 425-32 (Stevens, J., dissenting) (``To the extent that
the Framers' views are discernible and relevant to the disposition of
this case, they would appear to cut strongly against the majority's
position. This is not only because the Framers and their contemporaries
conceived of speech more narrowly than we now think of it, see Bork,
Neutral Principles and Some First Amendment Problems, 47 Ind. L.J. 1,
22 (1971), but also because they held very different views about the
nature of the First Amendment right and the role of corporations in
society. . . . The Framers [] took it as a given that corporations
could be comprehensively regulated in the service of the public
welfare. Unlike our colleagues, they had little trouble distinguishing
corporations from human beings, and when they constitutionalized the
right to free speech in the First Amendment, it was the free speech of
individual Americans that they had in mind. While individuals might
join together to exercise their speech rights, business corporations,
at least, were plainly not seen as facilitating such associational or
expressive ends.'').
---------------------------------------------------------------------------
Beyond historical practice and original understanding,
there remain critical, functional reasons why the First
Amendment had never before treated corporations and human
beings as equivalent. As Justice Stevens wrote:
In the context of election to public office, the
distinction between corporate and human speakers is
significant. Although they make enormous contributions
to our society, corporations are not actually members
of it. They cannot vote or run for office. Because they
may be managed and controlled by nonresidents, their
interests may conflict in fundamental respects with the
interests of eligible voters. The financial resources,
legal structure, and instrumental orientation of
corporations raise legitimate concerns about their role
in the electoral process. Our lawmakers have a
compelling constitutional basis, if not also a
democratic duty, to take measures designed to guard
against the potentially deleterious effects of
corporate spending in local and national races.
------
Unlike natural persons, corporations have limited
liability for their owners and managers, perpetual
life, separation of ownership and control, and
favorable treatment of the accumulation and
distribution of assets . . . that enhance their ability
to attract capital and to deploy their resources in
ways that maximize the return of their shareholders'
investments. . . . Unlike voters in U.S. elections,
corporations may be foreign controlled. . . . The
resources in the treasury of a business corporation are
not an indication of popular support for the
corporation's political ideas. They reflect instead the
economically motivated decisions of investors and
customers. The availability of these resources may make
a corporation a formidable political presence even
though the power of the corporation may be no
reflection of the power of its ideas.\75\
---------------------------------------------------------------------------
\75\Id. (Stevens, J., dissenting) (internal quotation marks and
citations omitted).
---------------------------------------------------------------------------
b. Overruling well-settled precedent
In Citizens United, the Court also overruled its 1990
decision Austin v. Michigan Chamber of Commerce,\76\ and thus
significantly limited the government interests that campaign
finance regulation can constitutionally protect. More
specifically, the Court held that a governmental interest in
preventing ``the corrosive and distorting effects of immense
aggregations of wealth that are accumulated with the help of
the corporate form and that have little or no correlation to
the public's support for the corporation's political
ideas''\77\ is insufficient to justify the infringements on the
First Amendment that are allegedly imposed by campaign finance
regulations. This left the government's interest in reducing
corruption or the appearance of corruption--terms that would
themselves be severely narrowed by the Court's 2012 ruling in
McCutcheon v. FEC, discussed infra--as the sole grounds on
which governments may justify campaign finance laws.
---------------------------------------------------------------------------
\76\494 U.S. 652 (1990).
\77\Id. at 660; Citizens United v. Fed. Election Comm'n, 558 U.S.
310, 348-363, 365.
---------------------------------------------------------------------------
In overruling Austin, the Court demonstrated an
unsophisticated understanding of how money in politics has
distorted the activities of legislatures across the country and
created structural impediments that make it difficult, if not
impossible, for elected representatives to act in the best
interests of their actual constituents. The majority's
insistence, throughout its opinion, that Citizens United
expands rights and democracy is belied by reality.
3. McCutcheon v. FEC
In 2014 in McCutcheon v. Federal Election Commission,\78\
the Court struck down the FECA's aggregate limit on
contributions to candidates and party committees and offered an
even narrower and more formalist definition of corruption.
Affirming that campaign finance regulations may only be
justified by a governmental interest in preventing corruption
or the appearance of corruption, the Court explained for the
first time that this interest must be ``confined to . . . quid
pro quo corruption[;] the Government may not seek to limit . .
. mere influence or access [or the appearance thereof].''\79\
---------------------------------------------------------------------------
\78\134 S.Ct. 1434 (2014).
\79\Id.
---------------------------------------------------------------------------
Writing that governments ``may not . . . regulate
contributions simply to reduce the amount of money in politics,
or to restrict the political participation of some in order to
enhance the relative influence of others,'' the Court betrayed
hostility towards basic democratic principles, principles that
have long been thought to undergird the First Amendment.\80\ As
the dissent, authored by Justice Breyer and joined by Justices
Ginsburg, Sotomayor, and Kagan, explained,
---------------------------------------------------------------------------
\80\See generally, id. (Breyer, J., dissenting).
Corruption breaks the constitutionally necessary
``chain of communication'' between the people and their
representatives. It derails the essential speech-to-
government-action tie. Where enough money calls the
tune, the general public will not be heard. Insofar as
corruption cuts the link between political thought and
political action, a free marketplace of political ideas
loses its point. That is one reason why the Court has
stressed the constitutional importance of Congress'
concern that a few large donations not drown out the
voices of the many.\81\
---------------------------------------------------------------------------
\81\Id., 134 S.Ct. 1434, 1467-68 (2014) (Breyer, J., dissenting).
The dissent also emphasized that one purpose of the First Amendment is
to empower a ``public opinion that can and will influence elected
representatives.'' Id. at 1467. Some have argued that this suggests the
dissent would read the First Amendment as solely a ``collective''
right. See, e.g., Hearing on Examining a Constitutional Amendment to
Restore Democracy to the American People Before the S. Comm. on the
Judiciary, 113th Cong (2014) (statement of Ranking Member Chuck
Grassley). This misreads the opinion. The dissent simply sought to
highlight that ``political communication seeks to secure government
action'' and does not ``exist in a vacuum.'' McCutcheon v. Federal
Election Com'n, 134 S.Ct. 1434, 1467 (2014) (Breyer, J., dissenting).
Thus, ``we can and should understand campaign finance laws as resting
upon a broader and more significant constitutional rationale than the
plurality's limited definition of `corruption' suggests. We should see
these laws as seeking in significant part to strengthen, rather than
weaken, the First Amendment. To say this is not to deny the potential
for conflict between (1) the need to permit contributions that pay for
the diffusion of ideas, and (2) the need to limit payments in order to
help maintain the integrity of the electoral process. But that conflict
takes place within, not outside, the First Amendment's boundaries.''
Id. at 1468.
The Court also characterized the ``constituent'' at the
heart of our political system not as she who votes or she who
is governed by an elected representative, but rather as he who
funds campaigns. The majority wrote that ```[i]ngratiation and
access . . . are not corruption.' . . . They embody a central
feature of democracy--that constituents support candidates who
share their beliefs and interests, and candidates who are
elected can be expected to be responsive to those
concerns.''\82\ Yet the companies and individuals donating huge
sums of money to candidates for statewide office or Congress
may not be ``constituents'' in any normal sense of the word:
they may not live or have any corporate presence in the State
whose policies and races they are trying to influence.\83\
---------------------------------------------------------------------------
\82\ McCutcheon v. Federal Election Com'n, 134 S.Ct. 1434, 1441
(2014) (emphasis added).
\83\See, e.g., Nicholas Confessore, A National Strategy Funds State
Political Monopolies, N.Y.Times, Jan. 11, 2014, available at http://
www.nytimes.com/2014/01/12/us/politics/a-national-strategy-funds-state-
political-monopolies.html.
---------------------------------------------------------------------------
The majority's opinion and crabbed definition of
corruption, however, stands in contradiction to prior Supreme
Court precedent and evidence of the Founders' ideas on
corruption. In fact, in rejecting this very narrow view of
corruption just years earlier in McConnell v. FEC, the Court
stated:
Our cases have made clear that the prevention of
corruption or its appearance constitutes a sufficiently
important interest to justify political contribution
limits. We have not limited that interest to the
elimination of cash-for-votes exchanges. In Buckley, we
expressly rejected the argument that antibribery laws
provided a less restrictive alternative to FECA's
contribution limits, noting that such laws ``deal[t]
with only the most blatant and specific attempts of
those with money to influence governmental action.''
424 U.S., at 28, 96 S.Ct. 612. Thus, ``[i]n speaking of
`improper influence' and `opportunities for abuse' in
addition to `quid pro quo arrangements,' we [have]
recognized a concern not confined to bribery of public
officials, but extending to the broader threat from
politicians too compliant with the wishes of large
contributors.''\84\
---------------------------------------------------------------------------
\84\McConnell v. Federal Election Com'n, 540 U.S. 93, 143 (2003).
The concept that corruption reaches beyond mere quid pro
quo corruption is supported by how our Framers viewed and used
---------------------------------------------------------------------------
the term corruption. As Professor Larry Lessig has written,
[B]y ``corruption,'' the Framers certainly did not mean
quid pro quo corruption alone. That exclusive usage is
completely modern. And while there were cases where by
``corruption'' the Framers plainly meant quid pro quo
corruption, these cases were the exception. The much
more common usage was ``corruption'' as in improper
dependence. Parliament, for example, was ``corrupt,''
according to the Framers, because it had developed an
improper dependence on the King. That impropriety had
nothing to do with any quid pro quo. It had everything
to do with the wrong incentives being allowed into the
system because of that improper dependence.\85\
---------------------------------------------------------------------------
\85\Larry Lessig, Originalists Making it Up Again: McCutcheon and
`Corruption,' The Daily Beast, Apr. 2, 2014, available at http://
www.thedailybeast.com/articles/2014/04/02/originalists-making-it-up-
again-mccutcheon-and-corruption.html.
Moreover, in his Citizens United dissent, Justice Stevens
cites to Professor Zephyr Teachout's article on the issue, and
notes that ``[i]t is fair to say that the Framers were obsessed
with corruption, which they understood to encompass dependency
of public officeholders on private interests. They discussed
corruption more often in the Constitutional Convention than
factions, violence, or instability. When they brought our
constitutional order into being, the Framers had their minds
trained on a threat to republican self-government that this
Court has lost sight of.''\86\
---------------------------------------------------------------------------
\86\Citizens United, 558 U.S. at 452 (Stevens, J., dissenting)
(internal quotation marks omitted) (citing Zephyr Teachout, The Anti-
Corruption Principle, 94 Cornell L. Rev. 341, 373, 378 (2009)).
---------------------------------------------------------------------------
Contrary to the claims made by the Minority, the four
dissenting justices in McCutcheon nowhere advanced the premise
that constitutional rights are generally ``collective'' rights.
Rather, they contextualized McCutcheon as a decision at odds
with over 200 years of constitutional thinking--thinking that
has recognized that individual speech rights are closely linked
to the preservation of democracy and freedom in our society.
``Collective speech matters,'' the dissent explained, because
in a democracy, the collective voices of individual citizens--
rather than the single voice of a solitary moneyed interest--
should be what persuade representatives to devote time and
attention to specific issues.\87\ This is a common sense
proposition because, as the Court recognized more than 100
years ago, the right to vote is a fundamental political right
because in a democracy it is ``preservative of all
rights.''\88\ That collective speech matters is an observation
as old as our democracy itself. As the dissenting justices
wrote in McCutcheon, Federalist No. 57 discussed the
'''communion of interests and sympathy of sentiments' between
the people and their representatives, so that public opinion
[can] be channeled into effective governmental action.''\89\
---------------------------------------------------------------------------
\87\McCutcheon v. Fed. Election Comm'n, 134 S. Ct. 1434, 1467
(2014) (Breyer, J., dissenting).
\88\Yick Wo v. Hopkins, 118 U.S. 356, 370 (1886).
\89\McCutcheon v. Fed. Election Comm'n, 134 S. Ct. 1434, 1467
(2014) (Breyer, J., dissenting) (quoting The Federalist No. 57, 386 (J.
Cooke ed. 1961) (James Madison)).
---------------------------------------------------------------------------
And contrary to the Minority's claims that this Supreme
Court has been a staunch guardian of the First Amendment, the
evidence shows that the conservative majority is not so
protective of the First Amendment when it comes to the rights
of everyday hardworking Americans. For instance, in Arizona
Free Enterprise Club's Freedom Club PAC v. Bennett,\90\ the
Court struck down Arizona's public financing law, which
provided matching funds (up to a limit) to publicly funded
candidates in order to balance money spent by privately
financed opponents and by independent groups. This was
decidedly an anti-democratic and anti-First Amendment ruling
because Arizona's public financing law actually provided for
more voices to be heard in the political process.
---------------------------------------------------------------------------
\90\131 S. Ct. 2806 (2011).
---------------------------------------------------------------------------
In sum, the Court's recent about-face and drastic departure
from a century of settled law and precedent has led to the
evisceration of nearly every reasonable campaign finance
protection that had been in the books. Its tortured and radical
interpretation of the First Amendment has led to a predictable
and entirely foreseeable fallout.
C. Fallout from the Supreme Court's unprecedented decisions
Over the last several years, outside spending in elections
has risen to unprecedented levels. According to the Federal
Election Commission, almost $7 billion was spent on Federal
elections in 2012.\91\ The election in 2012 was the most
expensive election in U.S. history, with one dollar spent for
almost every person on the planet.\92\
---------------------------------------------------------------------------
\91\Press Release, Federal Election Commission, FEC Summarizes
Campaign Activity of the 2011-2012 Election Cycle, Apr. 19, 2013,
available at: http://www.fec.gov/press/press2013/20130419_2012-24m-
Summary.shtml.
\92\Tarini Parti, $7 Billion Spent on 2012 Campaign, FEC Says,
Politico, Jan. 31, 2013, available at http://www.politico.com/story/
2013/01/7-billion-spent-on-2012-campaign-fec-says-87051.html.
---------------------------------------------------------------------------
The dramatic increase is directly attributable to a series
of recent Supreme Court cases documented above, decided along
ideological lines, that ignored decades of precedent,
eviscerated campaign finance laws, and opened the floodgates to
vast sums of money from wealthy, special interests, and
corporate donors.
1. Massive influx of spending by corporations and wealthy
donors
Citizens United v. FEC, along with the D.C. Circuit case of
SpeechNOW.org v. FEC\93\ are primarily responsible for the
creation of Super PACs (Super PACs or Super Political Action
Committees can accept unlimited financial contributions
directly from the bank accounts of wealthy donors and the
corporate treasuries of unions and corporations to finance
expenditures on elections, as long as they are not coordinated
with candidates). During the 2012 election, the first
presidential election cycle following Citizens United, outside
spending from groups not affiliated with a political party
tripled the 2008 total and exceeded $1 billion for the first
time.\94\ According to the Center for Responsive Politics, $600
million of that came from Super PACs.\95\ There were at least
36 U.S. House and U.S. Senate races in 2012 in which candidates
were outspent by outside groups.\96\
---------------------------------------------------------------------------
\93\599 F.3d 686 (D.C. Cir. 2010).
\94\Andrew Mayersohn, Four Years After Citizens United: The
Fallout, Open Secrets Blog, Jan. 21, 2014, http://www.opensecrets.org/
news/2014/01/four-years-after-citizens-united-the-fallout/.
\95\Id.
\96\Id.
---------------------------------------------------------------------------
Freed from the previous prohibition on using profits from
corporate treasuries to fund Federal elections, privately held
corporations jumped at the opportunity to give millions to
Super PACs during the 2012 presidential election. Specialty
Group, Inc. gave more than $10 million, while Contran Corp., a
holding company, and Oxbow Corp, a Koch Company, each
contributed more than $4 million to Super PACs. These are three
of the top 15 publicly disclosed organizations funding outside
spending groups in 2012.\97\ While these three gave almost $20
million exclusively to conservative causes, excessive money
from wealthy individuals, unions, and special interest PACs too
easily finds its way into the campaign coffers of both parties.
Citizens United and its progeny took this bipartisan problem
and made it worse by inviting money from corporate and union
treasuries.
---------------------------------------------------------------------------
\97\Ciara Torres-Spelliscy, What a Waste of Corporate Money,
JURIST--Forum, Dec. 3, 2012, http://jurist.org/forum/2012/12/torres-
spelliscy-campaign-finance.php.
---------------------------------------------------------------------------
A Washington Post-ABC News Poll published shortly after
Citizens United, found that 80% of Americans opposed the
Court's ruling, with 65% ``strongly opposed to unfettered
corporate spending in elections.''\98\ Perhaps because of this
widespread and bipartisan opposition to unlimited corporate
spending on elections, publicly traded corporations have been
slow to broadcast their outside spending or donate to Super
PACs that disclose their donors. Election watchdogs and
transparency groups believe that publicly traded companies
prefer to discretely invest in politically active nonprofits
and trade associations that do not disclose their donors.\99\
---------------------------------------------------------------------------
\98\Dan Eggen, Poll: Large Majority Opposes Supreme Court Decision
on Campaign Financing, The Washington Post, Feb. 17, 2010, http://
www.washingtonpost.com/wp-dyn/content/article/2010/02/17/
AR2010021701151.html.
\99\Torres-Spelliscy, supra note 97.
---------------------------------------------------------------------------
Although the vast majority of money spent on elections by
publicly traded companies is most likely being spent through
non-disclosing Super PACs, some companies had their
contributions publicly disclosed in 2012. According to the
Center for Responsive Politics, Chevron donated $2.5 million
and Clayton Williams Energy, Inc. donated more than $1 million
to Super PACs. Chesapeake Energy, CONSOL Energy, Hallador
Energy, Scotts Miracle-Gro, and Pilot Corp each contributed
$100,000 or more to Federal Super PACs during that
election.\100\
---------------------------------------------------------------------------
\100\Id.
---------------------------------------------------------------------------
Corporate entities, drawing upon million-dollar and
billion-dollar treasuries to advance their corporate interests
and enhance their bottom-line, now have the capacity to drown
out the voices of hardworking Americans in Federal elections.
This unfettered corporate money released by Citizens United can
perhaps have the greatest impact and disproportionately high
return on investment for corporations in State and local
elections. One prominent example of this phenomena occurred in
Richmond, California last year.
After the mayor and city council sought to limit pollution
and demand higher safety standards at a Chevron refinery in the
town,\101\ Chevron poured $1.6 million into a Super PAC during
the 2012 city council race, defeating two council candidates
who supported the efforts.\102\ In addition to corporate
spending in the council races, almost $2.7 million was spent by
the American Beverage Association, Cinemark INC, and Regal
Entertainment to fund a campaign against a ballot measure that
would have taxed sugar-sweetened beverages.\103\ As a result,
campaigns in Richmond spent at least $40 per resident in the
2012 election.\104\ While $1.4 million was a drop in the bucket
for a billion-dollar company like Chevron, ordinary Richmond
residents were bombarded with the highest election expenditure
in the city's history.\105\
---------------------------------------------------------------------------
\101\Tawanda Kanhema, Citizens Outspent: Inside Richmond's $4m
Election Campaign, Richmond Confidential, Nov. 5, 2012, available at
http://richmondconfidential.org/2012/11/05/citizens-outspent-inside-
richmonds-4m-election-campaign/.
\102\John Geluardi, Stephen Hobbs, et al., Election recap: Voters
seek familiar faces, Richmond Confidential, Nov. 8, 2012, available at
http://richmondconfidential.org/2012/11/08/election-recap-voters-seek-
familiar-faces.
\103\See Kanhema, supra note 101; Geluardi, supra note 102.
\104\Kanhema, supra note 101.
\105\Id.
---------------------------------------------------------------------------
Corporations, of course, are not alone in their desire to
use their financial largess to influence the elections and
public policies impacting their interests. Citizens United and
its progeny have also given rise to an elite class of wealthy,
mega-donors who exercise tremendous influence on elections.
For the millionaires and billionaires hoping to expand
their influence on elections, the Supreme Court's decision in
McCutcheon v. FEC is the gift that keeps on giving. McCutcheon
eliminated the $123,200 aggregate, per cycle cap on individual
donations to Federal candidates, PACs, and parties. Now,
wealthy donors can give as much as $3.5 million each cycle to
all candidates, parties, and PACs.\106\ Those separate
donations can be transferred between and coordinated by the
groups, allowing donors to circumvent limits on donations to a
particular candidate or party.
---------------------------------------------------------------------------
\106\Russ Choma, Supreme Court and Campaign Finance: McCutcheon
Chapter, Open Secrets Blog, Oct. 8, 2013, http://www.opensecrets.org/
news/2013/10/supreme-court-and-campaign-finance-mccutcheon-chapter.
---------------------------------------------------------------------------
According to the Center for Responsive Politics, ``in 2012,
the most expensive election ever, the average winner of a House
race spent only $1.5 million.''\107\ Post McCutcheon, one
wealthy donor contributing the maximum of $3.5 million ``could
fund, on average, two winning House campaigns--and have change
left over.''\108\ In the aggregate, McCutcheon could enable an
elite class of 429 people, each donating $3.5 million, to raise
$1.5 billion, the total amount raised by Republicans and
Democrats from all donors in 2010.\109\ That means, in a
society that values democracy and political participation, we
could have two major parties wholly funded by fewer than 450
people.
---------------------------------------------------------------------------
\107\Id.
\108\Id.
\109\Id.
---------------------------------------------------------------------------
It is a troubling concept, far more fitting for a
plutocracy than the world's foremost democracy. Nevertheless,
it is not a farfetched idea. Citizens United and its progeny
created a club of millionaire and billionaire mega-donors who
have an outsized influence on elections. In 2012, 60% of all
Super PAC donations came from an elite class of 159
people.\110\ In North Carolina, that elite group had just one
member in 2010: 72% of all outside spending that year came from
groups affiliated with Art Pope, the millionaire conservative
activist.\111\ On the West Coast, Las Vegas casino magnate,
Sheldon Adelson, donated nearly $92 million to conservative
Super PACs in the 2012 election.\112\ Not to be outdone, the
Washington Post reports that the Koch brothers may spend $290
million on elections in 2014, the equivalent of the average
annual income for 5,270 middle class American households.\113\
These millionaires and billionaires are breaking one campaign
donation record after another in an influence game in which the
average American cannot participate. In the 2012 elections,
only 0.4% of the U.S. population gave political contributions
of more than $200 to candidate campaigns, political parties,
and PACs.\114\
---------------------------------------------------------------------------
\110\Adam Lioz and Blair Bowie, Billion-Dollar Democracy: The
Unprecedented Role of Money in the 2012 Elections, DEMOS, Jan. 17,
2013, http://www.demos.org/publication/billion-dollar-democracy-
unprecedented-role-money-2012-elections.
\111\Robin Parkinson, Independent Spending in North Carolina, 2006-
2010, National Institute on Money in State Politics, Dec. 20, 2011,
http://www.followthemoney.org/press/Report View.phtml?r=472.
\112\2012 Top Donors to Outside Spending Groups, Open Secrets,
http://www.opensecrets.org/outsidespending/
summ.php?cycle=2012&disp=D&type=V&superonly=S (last visited July 24,
2014).
\113\Philip Bump, The Koch brothers may spend $290 million on this
election. That's how much 5,270 American households make in a year, The
Washington Post, June 17, 2014, http://www.washingtonpost.com/blogs/
the-fix/wp/2014/06/17/the-koch-brothers-may-spend-290-million-on-this-
election-thats-how-much-5270-american-households-make-in-a-year/.
\114\Donor Demographics, Campaign Contributions, 2011-2012, Center
For Responsive Politics, http://www.opensecrets.org/bigpicture/
donordemographics.php?cycle=2012.
---------------------------------------------------------------------------
2. Increase in undisclosed money
Although the Supreme Court touted the merits of disclosure
and transparency in Citizens United, the reality is that
campaign finance laws and regulations are currently not up to
the task. While campaign contributions from corporations,
special interest, and wealthy individuals have grown
exponentially, disclosure of contributors has gone in the
opposite direction.
In 2006, organizations that do not disclose their donors
spent $5 million on Federal elections, according to the FEC. By
2010, after Supreme Court decisions in Citizens United and
Wisconsin Right to Life, that number catapulted to $131
million. Two years later, during the 2012 presidential
election, organizations that do not disclose their donors spent
$311 million dollars.\115\
---------------------------------------------------------------------------
\115\Testimony of Trevor Potter, President and General Counsel of
the Campaign Legal Center, before the Senate Committee on Rules and
Administration, Dollars and Sense: How Undisclosed Money and Post-
McCutcheon Campaign Finance Will Affect 2014 and Beyond, Center for
Responsive Politics, Apr. 30, 2014; Outside Spending by Disclosure,
Excluding Party Committees, Center for Responsive Politics, http://
www.opensecrets.org/outsidespending/disclosure.php.
---------------------------------------------------------------------------
Unfortunately, this corrosive trend of more money and less
disclosure is continuing in 2014. According to the Center for
Responsive Politics, ``[a]s of April 29 in the current cycle,
despite this being a midterm election, spending by
nondisclosing groups is nearly three times higher than it was
at the same point in 2012.'' As of the same date, the money
``spent by nondisclosing groups in 2014 was more than 75% of
all spending by PACs, Super PACS, 527s, and 501(c)
organizations at this point in the 2010 midterms.''\116\
---------------------------------------------------------------------------
\116\Id.
---------------------------------------------------------------------------
IV. TEXT OF S.J. RES. 19, AS REPORTED
Article --
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.
V. SECTION-BY-SECTION ANALYSIS OF THE JOINT RESOLUTION
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 1 affirms the central principles that elections are
meant to serve the process of democratic self-government, that
political equality among citizens is a precondition for
democratic self-government, and that the integrity of
representative relationships in democracy must be protected
against political and financial corruption. Section 1 further
affirms the fundamental principle that elections in our
democracy are about voters choosing their elected
representatives. Through a series of 5-4 decisions, including
McConnell v. FEC, Citizens United v. FEC, and McCutcheon v.
FEC, the Supreme Court has eviscerated longstanding campaign
finance regulations and invalidated critical provisions of some
public financing programs. The cumulative effect of these
wrongheaded decisions has been a tidal wave of special
interest, corporate, and secret money flooding federal, state,
and local elections and drowning out the voices of everyday
Americans.
Section 1 restores the power of the people to pass laws and
regulations, through their elected representatives, that stop
the corrupting influence of money in our elections. Section 1
gives Congress and States the express power to adopt
reasonable, content neutral, campaign finance regulations that
govern the raising and spending of money by candidates and
others in Federal, State and local elections. This section of
the amendment also restores the First Amendment right of
ordinary Americans to have their voices heard during the
electoral process. It expressly overturns Buckley v. Valeo by
establishing that preventing special interests, corporate, and
secret money from buying influence and access is a legitimate
governmental interest for establishing campaign contribution
and spending limits.
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 2 empowers Congress and the States to enact
campaign finance laws, including public financing programs, and
adopt implementing regulations as appropriate. It overturns
Citizens United v. FEC by clarifying that Congress and the
states are permitted to set election spending limits on
artificial entities, such as for-profit corporations, unions,
and other organizations that are different than the limits
applicable to natural born citizens. The status of existing
constitutional law with respect to corporations for purposes
other than campaign finance reform is unchanged by Section 2.
Section 3. Nothing in this article shall be construed to grant Congress
or the States the power to abridge the freedom of the press
Section 3 ensures that limitations on campaign spending and
contributions will not restrict legitimate press functions,
including reporting on elections and government, publishing
opinions and editorials, and endorsing candidates.
The Minority Views below make various assertions and
arguments regarding what this proposed constitutional amendment
would do. The arguments they make include: that the proposed
amendment would threaten and criminalize the fundamental right
of free speech; that it would allow for government to impose
regulations that would favor certain viewpoints; that the
proposed amendment is itself a content-based regulation; that
it is the first time in history that we have amended the Bill
of Rights and the Constitution to curtail someone's liberty;
and that it is an incumbent protectionist measure designed to
protect those in office. For the reasons discussed below, the
Minority Views are without merit. Even stripping away the
hyperbole, the Minority's arguments are simply not supported by
the facts.
A. S.J. RES. 19 ALLOWS FOR REGULATION OF ELECTION-RELATED SPENDING AND
NOT SPEECH
``Money is property; it is not speech,'' as Justice John
Paul Stevens wrote in Nixon v. Shrink Missouri Government
Pac.\117\ Speech, of course, is the distinctive human attribute
and is essential to political debate, governance, and voting in
democracy. It is protected under the First Amendment. But money
is currency, a universal medium of exchange that can be used
for multiple purposes, including paying bribes, making gifts to
politicians, achieving political influence and favor,
ingratiating oneself or one's lobbying clients with
officeholders, paying for political speech and advertising,
buying votes from voters, paying people not to vote, and so on.
Political speech has the highest levels of First Amendment
protection, but it is clear--or at least it used to be clear--
that money can be regulated or blocked in a host of contexts
where its use is considered illegitimate or incompatible with
other constitutional interests. This is the principle
endangered by the Supreme Court's money-is-speech dogma, which
appeared first in Buckley v. Valeo and has been exponentially
magnified by a narrow majority of this current Court.
---------------------------------------------------------------------------
\117\528 U.S. 377, 398 (2000) (Stevens, J., concurring).
---------------------------------------------------------------------------
It is a logical fallacy to treat political money as
political speech for all purposes and yet that is the
trajectory at work in Supreme Court decisions like Citizens
United and McCutcheon. Floyd Abrams, who is frequently quoted
by the Minority Views below, testified not only in defense of
those two decisions but for wiping out virtually all of
campaign finance law, including all limits on contributions,
expenditures, and corporate involvement. He testified only to
the validity of some disclosure laws. Thus, if we follow the
dogmas of money being speech and corporations being people to
their logical destinations, corporate CEOs will not only be
able to spend other people's money freely in politics but they
will have a right to give unlimited amounts directly to
politicians' campaigns, toppling the Tillman Act. And then a
century of campaign finance law will be destroyed. The
rationale which supports the extreme notion that government
cannot regulate any political money without squelching speech--
taken to its extreme conclusion--is in tension with the notion
that we can limit foreign money, foreign corporate money,
foreign government money, State and local government money,
illegal drug money, criminal proceeds, conduit contributions,
and money from children.
S.J. Res. 19 halts the rapid destruction of campaign
finance law by establishing once and for all that Congress and
the States have power to regulate ``election-related
spending''--not political speech.
B. S.J. RES. 19 PRESERVES THE PRINCIPLES OF VIEWPOINT AND CONTENT
NEUTRALITY AS WELL AS OTHER CONSTITUTIONAL PROTECTIONS
The Minority misconstrues the proposed constitutional
amendment. They claim that it would allow Congress to make it a
crime ``for the Sierra Club to run an ad urging the public to
defeat a congressman who favors logging in the national
forests'' among other outlandish hypotheticals.
The Minority ignores that the power to regulate campaign
finance has been exercised for more than a century since the
passage of the Tillman Act in 1907. Despite that history,
somehow we are to believe that the proposed constitutional
amendment would be a license for the government to practice
viewpoint and content discrimination. This is simply false. The
ban on Federal corporate spending struck down in Citizens
United applied to spending for Democrats, Republicans,
Independents and everyone else, and it applied to all
corporations, whether conservative, liberal, or anything else,
except for one kind of corporation: not-for-profit corporations
organized for the explicit purpose of being involved in
electoral politics.\118\ Similarly, the now-imperiled Tillman
Act's ban on corporate contributions to candidates has applied
for more than a century to all candidates of all political
stripes and to all corporations of all ideological hues.
---------------------------------------------------------------------------
\118\See FEC v. Massachusetts Citizens for Life, 479 U.S. 238
(1986).
---------------------------------------------------------------------------
Any attempted use of the campaign finance regulatory power
to discriminate against this or that political group, party, or
position would conflict directly with the First Amendment's
prohibition against viewpoint and content discrimination and
would be deemed immediately ``unreasonable.'' It is a cardinal
First Amendment principle that the ``government has no power to
restrict expression because of its message, its ideas, its
subject matter, or its content.''\119\ The fact that the 28th
Amendment will come after the First Amendment does not change
this reality in any way. After all, the Fourteenth Amendment
came after the First Amendment too, but in R.A.V. v. City of
St. Paul,\120\ the Supreme Court struck down a hate crimes
ordinance that had made it a crime to use racist fighting words
but not, for example, anti-racist fighting words. In a
unanimous 9-0 decision, the Court found that this was content-
based discrimination and that the Equal Protection command in
the Fourteenth Amendment does not overcome the First Amendment
command of content neutrality in speech regulation. As Justice
Scalia wrote, government has no authority ``to license one side
of a debate to fight freestyle, while requiring the other to
follow the Marquis of Queensbury Rules.''\121\ The principle
that a new constitutional amendment ``must be construed in
connection with the . . . clauses of the original Constitution
and the effect attributed to them before the amendment was
adopted''\122\ is not a controversial proposition, and the
Minority's rhetoric that this proposed amendment--if adopted--
would somehow wipe out all prior constitutional protections
under the First Amendment is belied by Supreme Court precedent
and longstanding principles of constitutional interpretation.
The proposed amendment no more suspends operation of Fourteenth
Amendment equal protection principles than it does operation of
First Amendment free speech principles. New amendments are not
read outside of their legislative history to repeal existing
constitutional guarantees but instead are read to complement
them.
---------------------------------------------------------------------------
\119\Police Dept. of Chicago v. Mosley, 408 U.S. 92, 95 (1972).
\120\505 U.S. 377 (1992).
\121\Id. at 392.
\122\Eisner v. Macomber, 252 U.S. 189, 205 (1920) (discussing
interpretation of the Sixteenth Amendment); see Newberry v. United
States, 256 U.S. 232, 249-50 (1921) (``Undoubtedly elections within the
original intendment of section 4 were those wherein Senators should be
chosen by Legislatures and Representatives by voters possessing `the
qualifications requisite for electors of the most numerous branch of
the state Legislature.' Article 1, Sec. Sec. 2 and 3. The Seventeenth
Amendment, which directs that Senators be chosen by the people, neither
announced nor requires a new meaning of election and the word now has
the same general significance as it did when the Constitution came into
existence. . . .'').
---------------------------------------------------------------------------
The Minority further claims that the proposed amendment is
itself ``content-based'' because it would allow Congress and
the States to pass laws that regulate spending to ``influence
elections.'' First, as explained in the previous section, money
is not speech, and thus, allowing Congress and the States to
set reasonable limits on campaign contributions and
expenditures in the electoral context is not speech regulation.
Furthermore, even assuming that campaign finance regulations
create changes in the speech market, as arguably the Tillman
Act has done since 1907 by keeping corporate money out of
candidate campaigns, the proposed amendment is still not
content-based. Rather, it allows for reasonable--that is,
viewpoint-neutral, content-neutral and proportionate--
regulations in the electoral arena. As explained above, the
rules have to apply to all parties and candidates equally and
they may not target speech about a particular subject like
reproductive freedom or immigration.
Simply because the amendment provides for reasonable
regulation of spending in the electoral domain does not, of
course, make it content-based. After all, there are specific
rule regimes that apply to the speech that takes place in many
different social domains and contexts: speech relating to
corporate securities and insider trading, student speech that
takes place in public schools, public employee speech that
takes place in the government sector, broadcast speech on the
airwaves, speech by Members of Congress and by citizens that
takes place in the halls and formal meeting places of Congress,
and so on. Far from invalidating distinct rule regimes for
speech in different social domains, the Supreme Court has
upheld them and helped to articulate and define them. The
Minority is simply confusing content-based regulation with
context-based regulation.
C. S.J. RES. 19 ADVANCES DEMOCRATIC SELF-GOVERNMENT AND IS NOT THE
FIRST CONSTITUTIONAL AMENDMENT TO UPSET POWERFUL INTERESTS UNDER THE
CONSTITUTION
The Minority states: ``In its history, no provision of its
Bill of Rights has ever been amended. We consider S.J. Res. 19
to be a dagger at the heart of the Bill of Rights. . . .''\123\
---------------------------------------------------------------------------
\123\See supra section IX.
---------------------------------------------------------------------------
This claim is plainly false. As Professor Raskin testified
in his answer to Senator Durbin on this point, ``the people
have been forced to amend the Constitution multiple times to
reverse reactionary decisions of the Supreme Court that freeze
into place the constitutional property rights and political
privileges of the powerful against the powerless.''\124\ For
example, the Thirteenth and Fourteenth Amendments clearly
``upset numerous settled expectations and vested rights of
white supremacy in the Constitution.''\125\ The Thirteenth
Amendment abolished slavery, stripping the absolute individual
property rights that white slave masters had enjoyed under the
Fifth Amendment as found by the Supreme Court in the Dred Scott
decision in 1857. Similarly, Section 4 of the Fourteenth
Amendment completely blocked and made illegal any future
compensation of slave masters for the confiscation of their
vested property rights in their slaves. It reads: ``But neither
the United States nor any State shall assume or pay any debt or
obligation incurred in aid of insurrection or rebellion against
the United States, or any claim for the loss or emancipation of
any slave; but all such debts, obligations and claims shall be
held illegal and void.''\126\ Thus, not only did the
Constitution strip slave masters of their property, it also
made it impossible for them to seek restitution under the Fifth
Amendment.
---------------------------------------------------------------------------
\124\Professor Jamie Raskin's Responses to Senator Richard J.
Durbin, Follow Up Questions for the Record, Examining a Constitutional
Amendment to Restore Democracy to the American People, Hearing before
the U.S. Senate Committee on the Judiciary, June 25, 2014, at 6.
\125\Id. at 4.
\126\U.S. Const. amend. XIV, Sec. 4 (emphasis added).
---------------------------------------------------------------------------
Other amendments have affected settled rights and
interests. For example, the Seventeenth Amendment shifted the
mode of election of United States Senators from State
legislatures to the people, stripping individual legislators of
their rights and powers to control the choice of Senators. This
was a deeply controversial change pushed by progressives and
populists opposing corporate domination of the United States
Senate through blatant financial manipulation of State
legislatures. It removed the right of State legislators to
select the U.S. Senators representing their state. The
Seventeenth Amendment remains controversial even today, with
certain Senators, including some of those in the Minority,
calling for its repeal.
The Nineteenth Amendment, ratified in 1920, gave women the
right to vote over strenuous objections that this would dilute
and violate the rights of men to govern. The Supreme Court in
1874 had rejected a constitutional challenge to the
disenfranchisement of women, upholding the regime of male
supremacy.\127\ Indeed, in Bradwell v. Illinois, the Court had
stated that ``[t]he paramount destiny and mission of woman are
to fulfil[l] the noble and benign offices of wife and mother.
This is the law of the Creator.''\128\ As Professor Raskin
noted, ``It took decades of agitation and civil disobedience by
Suffragettes to get the 19th Amendment enacted, and its
opponents interpreted its adoption as a dramatic limitation on
their exclusive rights to govern and rule in a patriarchal
system, which surely it was.''\129\ The Nineteenth Amendment
therefore stripped male citizens from having the sole right to
choose their elected representatives to the categorical
exclusion of women.
---------------------------------------------------------------------------
\127\See Minor v. Happersett, 88 U.S. 162 (1874).
\128\83 U.S. 130, 141 (1872).
\129\Supra note 124 at 5.
---------------------------------------------------------------------------
The Minority suggests that the progress of democracy and
freedom under our Constitution have been seamless and downplays
that no one has been aggrieved by the addition of new rights
for the people as a whole. This is false. Nearly every
expansion of the rights of the people has encountered ferocious
opposition by those invested in the status quo and has, in a
sense, taken away or removed a right or settled expectation
from some group of individuals.
The Minority also alleges that this proposed amendment is
``elitist'' and is effectively an incumbent protectionist
measure. This statement is simply unsupported by any facts. The
proliferation of State campaign finance laws throughout the
past half-century shows that they can, and do, foster
competitive elections. In 1959, forty-three states had some
form of disclosure requirement for parties, committees, or
candidates, while thirty-one had expenditure limits and only
four had individual contribution limits.\130\ State
contribution limits have particularly grown more prevalent over
the decades; as of 2013, forty-six states had limits on
individual contributions.\131\ These laws have had a positive
impact on the competitiveness of elections. One 2006 study
showed that State contribution limits, analyzed from 1980 to
2001, ``narrow[ed] the margin[s] of victory of the winning
candidate[s],'' ``[led] to closer elections for future
incumbents,'' and ``increase[d] the number of candidates in the
race[s].''\132\ A comparative study of the 2010 election cycle
showed that Texas (operating under lax contribution limits) was
much less competitive than Colorado (operating under tight
contribution limits).\133\
---------------------------------------------------------------------------
\130\Frank J. Sorauf, Money in American Elections 50 (1988).
\131\Nat'l Conference of State Legislatures, State Limits on
Contributions to Candidates (updated Oct. 2013) (accessed July 21,
2014), available at http://www.ncsl.org/Portals/1/documents/legismgt/
Limits_to_Candidates_2012-2014.pdf.
\132\Thomas Stratmann & Francisco J. Aparicio Castillo, Competition
policy for elections: Do campaign contribution limits matter?, 127 Pub.
Choice 177, 191, 199 (2006); see also Donald A. Gross & Robert K.
Goidel, The Impact of State Campaign Finance Laws, 1 St. Pol. & Pol'y
Q. 180, 190 (2001) (finding that public financing in combination with
spending limits is a viable means of increasing electoral competition
as well as voter turnout).
\133\Edwin Bender, Evidencing a Republican Form of Government: The
Influence of Campaign Money on State-Level Elections, 74 Mont. L. Rev.
165, 173-74 (2013).
---------------------------------------------------------------------------
In sum, rather than restrict or ban speech as the
Minority's extreme rhetoric would have one believe, the
proposed amendment would enhance speech and provide for greater
democratic participation from the American people.
VI. CONGRESSIONAL BUDGET OFFICE COST ESTIMATE
The Committee sets forth, with respect to the joint
resolution, S.J. Res. 19, the following estimate and comparison
prepared by the Director of the Congressional Budget Office
under section 402 of the Congressional Budget Act of 1974:
July 18, 2014.
Hon. Patrick J. Leahy,
Chairman, Committee on the Judiciary,
U.S. Senate, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for S.J. Res. 19, a joint
resolution proposing an amendment to the Constitution of the
United States relating to contributions and expenditures
intended to affect elections.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is Matthew
Pickford.
Sincerely,
Douglas W. Elmendorf.
Enclosure.
S.J. Res. 19--A joint resolution proposing an amendment to the
Constitution of the United States relating to contributions and
expenditures intended to affect elections.
S.J. Res. 19 would propose an amendment to the Constitution
to allow the Congress and individual states to enact
legislation that regulates the raising and spending of money in
federal and state elections. By itself, this legislation would
have no effect on the federal budget. If the proposed amendment
to the Constitution were approved by the states, then any
future legislation regulating the financing of elections could
impose additional costs on executive branch agencies, including
the Federal Election Commission, and on the judicial branch;
however, any such costs would be attributed to subsequent
legislation. Enacting S.J. Res. 19 would not affect direct
spending or revenues; therefore, pay-as-you-go procedures do
not apply.
S.J. Res. 19 contains no intergovernmental or private-
sector mandates as defined in the Unfunded Mandates Reform Act
and would impose no costs on state, local, or tribal
governments. In order for the amendment to become part of the
Constitution, three-fourths of the state legislatures would
have to ratify the resolution within seven years of its
submission to the states by the Congress. However, no state
would be required to take action on the resolution, either to
reject it or approve it.
The CBO staff contacts for this estimate are Matthew
Pickford (for federal costs), and Michael Hirsch and Leo Lex
(for the state and local impact). The estimate was approved by
Theresa Gullo, Deputy Assistant Director for Budget Analysis.
VII. REGULATORY IMPACT STATEMENT
In compliance with rule XXVI of the Standing Rules of the
Senate, the Committee finds that no significant regulatory
impact will result from the enactment of S.J. Res. 19.
VIII. CONCLUSION
The proposal to amend the Constitution of the United States
relating to contributions and expenditures intended to affect
elections, S.J. Res. 19, would counter the Supreme Court's
distorted and extreme rulings expanding the role of money in
politics, and overturn the Court's assertion that Federal
restrictions on contributions and independent expenditures
violate the First Amendment's guarantee of free speech. The
amendment grants lawmakers at both the Federal and State levels
the express constitutional authority to regulate money raised
and spent on elections, and thereby rein in the influence that
wealthy donors and outside groups have on election. The
amendment restores the First Amendment as the Founders intended
and preserves the protections that ensure all voices can be
heard in the democratic process. The amendment reestablishes
the power of the people in Congress and the states to protect
democratic self-government, political equality, and
representative integrity as the framework for free political
discourse and public discussion.
IX. MINORITY VIEWS
----------
MINORITY VIEWS FROM SENATORS GRASSLEY, HATCH, SESSIONS, GRAHAM, CORNYN,
LEE, CRUZ AND FLAKE
Our Constitution, as Chief Justice John Marshall wrote, was
``intended to endure for ages to come . . .''\1\ In its
history, no provision of its Bill of Rights has ever been
amended. We consider S.J. Res. 19 to be a dagger at the heart
of the Bill of Rights, and we oppose it to a degree
commensurate with its dangers.
---------------------------------------------------------------------------
\1\McCulloch v. Maryland, 4 Wheat. 316, 415 (1819).
---------------------------------------------------------------------------
We start with First Principles. The Declaration of
Independence states that everyone is endowed by their Creator
with unalienable rights that governments are created to
protect. Those preexisting rights include the right to liberty.
The Constitution was adopted to secure the blessings of
liberty to Americans. Americans rejected the view that the
structural limits on government power contained in the original
Constitution would adequately protect the liberties they had
fought a revolution to preserve. So they insisted on the
adoption of a Bill of Rights.
The Bill of Rights protects individual rights regardless of
whether the government or a majority approves of their use. The
First Amendment in the Bill of Rights protects the freedom of
speech. That freedom is basic to self-government. Other parts
of the Constitution foster equality or justice or
representative government. But the Bill of Rights is only about
individual freedom.
Liberals who were once great champions of freedom of speech
have retreated from protecting it. Their new thinking mirrors
Justice Breyer, who wrote in the McCutcheon case that free
political speech is about advancing ``the public's interest in
preserving a democratic order in which collective speech
matters.''\2\ That is no misreading of the dissent of four
Justices, as the majority report weakly argues, but a direct
quotation in context. It is the core conception of the
dissent's view of campaign spending. To be sure, individual
rights often advance socially desirable goals. But our
constitutional rights do not depend on whether unelected judges
believe they advance democracy as they conceive it. Our
constitutional rights are individual, not ``collective.'' It is
individual speech, alone or in association with others, that
matters. Never in 225 years has any Supreme Court opinion
described our rights as ``collective.'' They come from God and
not from the government or the public.
---------------------------------------------------------------------------
\2\McCutcheon v. Federal Election Commission, 134 S. Ct. 1434, 1467
(2014) (Breyer, J., dissenting).
---------------------------------------------------------------------------
Free speech creates a marketplace of ideas in which
citizens can learn, debate, and persuade fellow citizens on the
issues of the day. At its core, it enables the citizenry to be
educated to cast votes to elect their leaders.
Today, freedom of speech is threatened as it has not been
in many decades. Too many people will not listen and debate and
persuade. They want to punish, intimidate, and silence those
with whom they disagree. A corporate executive who opposed same
sex marriage--the same position that President Obama held at
the time--is to be fired. Universities that are supposed to
foster academic freedom cancel graduation speeches by speakers
that some students find offensive.
S.J. Res. 19, cut from the same cloth, would amend the
Constitution for the first time to diminish an important right
of Americans that is contained in the Bill of Rights. In fact,
it would cut back on the most important of these rights, core
free speech about who should be elected to govern ourselves.
The proposed constitutional amendment would enable
government to limit funds contributed to candidates and funds
spent by or in support of candidates to influence elections.
That would give the government the ability to limit speech.
Public debate on who should be elected to govern the public
would be diminished to whatever level politicians considered to
be ``reasonable.'' Incumbents would find that outcome to be
acceptable. They would know that few challengers could run an
effective campaign against them.
Consider the history of the last 100 years. Freedom has
flourished where rights belonged to individuals that
governments were bound to respect. Where rights were
collective, and existed only at the whim of a government that
determines when they serve socially desirable purposes, the
results have been literally horrific. We should not move even
one inch in the direction the liberal justices and this
amendment would take us.
What precedent would this amendment create? Suppose
Congress limited the amount of money people could spend on
guns? Or limited how much people could spend of their own money
on health care?
What is striking about the majority report is its nearly
exclusive spinning of a creative narrative of historical and
contemporary campaign spending with barely any discussion of
the language of the constitutional amendment and its effects.
Under this amendment, Congress could do what the Citizens
United decision rightfully said it could not: make it a
criminal offense for the Sierra Club to run an ad urging the
public to defeat a congressman who favors logging in the
national forests; for the National Rifle Association to publish
a book seeking public support for a challenger to a senator who
favors a handgun ban; or for the ACLU to post on its website a
plea for voters to support a presidential candidate because of
his stance on free speech.\3\ It could prefer some speakers
over others and ban some classes of speakers from the public
debate. It could jail citizens or associations of citizens for
speaking at all or in excess of limits Congress set. It could
ban books or movies produced by corporations that are designed
to influence elections. This is unquestionably the case because
it was the government's legal action against a corporate-
produced film that was at issue in Citizens United. And it was
the Obama Justice Department's position in the original oral
argument before the Supreme Court in that case that the First
Amendment was no obstacle to criminalizing a corporate-
published book concerning a candidate. These should be
frightening prospects for us all.
---------------------------------------------------------------------------
\3\Citizens United v. Federal Election Commission, 558 U.S. 310
(2010).
---------------------------------------------------------------------------
S.J. Res. 19 would amend the Constitution to allow Congress
and the states to limit campaign contributions and
expenditures, some reasonably and some in total, without
complying with existing constitutional provisions or doctrine.
Congress could pass a law limiting expenditures by Democrats
but not by Republicans, by opponents of Obamacare but not by
supporters. That fear is enhanced by the majority's criticism
of Chevron's independent expenditures, but not those of unions
in the same city elections; of the Koch Brothers and Art Pope
but not those of liberal environmentalist billionaires on
behalf of Democrats.
The majority wrongly contends that the amendment would
apply only ``content neutral [] campaign finance regulations.''
The clear text is to the contrary. It allows the restriction,
and in some instances banning, of speech that is ``to influence
elections.'' Its application is explicitly and exclusively
content-based, not content neutral. The amendment would apply
only to speech containing statements that sought to influence
elections. It would be inapplicable to any other kind of
expression. And the discussion of a majority senator at the
hearing emphasizes the point. Senator Schumer expressly
analogized speech to influence elections, at least by certain
speakers, to the kinds of expression that the Supreme Court has
held do not enjoy any First Amendment protection due precisely
to their content, such as child pornography and the false cry
of ``fire'' in a crowded theater, while one of the majority
witnesses compared bans and restrictions on the political
speech contained in the amendment to prohibitions on buying
sex, another category of speech that can be prohibited by
virtue of its content notwithstanding the First Amendment.
And what does the amendment mean when it says that Congress
can limit funds spent ``to influence elections''? If an elected
official says he or she plans to run again, long before any
election, Congress under this amendment could criminalize any
criticism of that official as spending ``to influence
elections.'' A senator on the Senate floor, appearing on C-SPAN
free of charge, could with immunity defame a private citizen.
The member could say that the citizen was buying elections. If
the citizen spent any money to rebut the charge, he could go to
jail. We would be back to the days when criticism of elected
officials was a criminal offense, as during the Alien and
Sedition Acts. And yet its supporters say this amendment is
necessary for democracy.
The majority is also incorrect when it argues that the
amendment ``restores the First Amendment right of ordinary
citizens to have their voices heard during the election
process.'' Obtaining support for candidates and their ideas
takes money. Under modern communications, it often takes a
great deal of money, much more than an ordinary citizen can
afford. Only if those citizens can join together with others in
some sort of association that is not a natural person will they
be able to meaningfully make their voices heard. This amendment
would make that far more difficult. Silencing some voices will
not enable ordinary citizens to effectively combine to make
their own voices heard.
Section 2 of the amendment's text provides that ``Congress
and the States shall have power to implement and enforce this
article by appropriate legislation . . .'' Yet, the majority
report states that Section 2 ``empowers Congress and the states
to enact campaign finance laws, including public financing
programs, and adopting implementing regulations as
appropriate'' (emphasis added). The hollowness of the
majority's declared commitment to democracy is self-evident.
The majority seeks to give unelected bureaucrats, answerable to
no one, the ability to ban and restrict core political speech
that would no longer enjoy First Amendment protection. The
majority would undermine the most fundamental truth of our
Constitution: ``If there is any fixed star in our
constitutional constellation, it is that no official, high or
petty, can prescribe what shall be orthodox in politics,
nationalism, religion, or other matters of opinion . . .''\4\
S.J. Res. 19 would empower both sorts of officials to do so.
---------------------------------------------------------------------------
\4\West Virginia State Board of Education v. Barnette, 319 U.S.
624, 642 (1943) (emphasis added).
---------------------------------------------------------------------------
The only existing right that the amendment says it will not
harm is freedom of the press. So Congress and the states could
limit the speech of anyone except the corporations that control
the media. That would produce an Orwellian world in which every
speaker is equal but some speakers are more equal than others.
Freedom of the press has never been understood to give the
media special constitutional rights denied to others.
The stakes could not be higher for all Americans who value
their rights and freedom. Speech concerning who the people's
elected representatives should be; speech setting the agenda
for public discourse; speech designed to open and change the
minds of our fellow citizens; speech criticizing politicians;
and speech challenging government policy are all vital rights.
This amendment puts all of them in jeopardy upon penalty of
imprisonment.
It would make America no longer America.
We totally reject the arguments that proponents have raised
in support of the amendment.
This amendment will not advance self-government or protect
the political process from corruption. Just the opposite. It
would harm the rights of ordinary citizens, individually and in
free association, to advance their political views and to elect
candidates who support their views. And by limiting campaign
speech, it would limit the information that voters receive in
deciding how to vote. It would limit the amount that people can
spend on advancing what they consider to be the best political
ideas.
Individuals facing ``reasonable'' limits on their political
activity would risk criminal prosecution in deciding whether to
speak, hoping that a court would later find that the limit he
or she exceeded was ``unreasonable.'' That would create not a
chilling effect on speech, but a freezing effect. This does not
further democratic self-government. Instead of the government
being the servant to the people, the people would be the
servant to the government.
The amendment would apply to some campaign speech that
cannot give rise to corruption. For instance, under current
law, an individual could spend any amount of his or her own
money to run for office. An individual could not corrupt
himself by his own money and could not be bought by others if
he or she did not rely on outside money. Senator Herb Kohl, a
former member of this Committee, made that argument to his
constituents. Were this amendment part of the Constitution, a
future Senator Kohl would be limited in what he could
contribute to his campaign and how much he could spend.
In practice, individuals seeking to elect candidates in the
democratic process must exercise their First Amendment freedom
of association to work together with others. This amendment
could prohibit that altogether. It would permit Congress and
the states to prohibit ``corporations and artificial entities .
. . from spending money to influence elections.'' That means
unions. That means nonprofit corporations like the NAACP Legal
and Educational Defense Fund, Inc., which recently testified
before the Committee on a different matter. That means
political parties. The amendment would allow Congress to
prohibit political parties from spending money to influence
elections. If they cannot spend money on elections, then they
would be rendered as mere social clubs.
The prohibition on political spending by for-profit
corporations also does not advance democracy. Were this
amendment to take effect, a company that wanted to advertise
beer or deodorant would be given more constitutional protection
than a corporation of any kind that wanted to influence an
election.
The philosophy of the amendment is elitist. It says the
ordinary citizen cannot be trusted to listen to political
arguments and evaluate which ones are persuasive. Instead,
incumbent politicians interested in securing their own
reelections are trusted to be high-minded. Surely, they would
not use this new power to develop rules that could silence not
only their actual opposing candidates, but associations of
ordinary citizens who have the nerve to want to vote them out
of office. As leading First Amendment luminary Floyd Abrams
wrote, ``[P]ermitting unlimited expenditures from virtually all
parties leads to more speech from more candidates for longer
time periods, and ultimately to more competitive elections.''
Incumbents are unlikely to use this new power to welcome that
competition.\5\
---------------------------------------------------------------------------
\5\Hearing on Examining a Constitutional Amendment to Restore
Democracy to the American People Before the S. Comm. on the Judiciary,
113th Cong (2014) (statement of Floyd Abrams).
---------------------------------------------------------------------------
Yet the amendment also presumes that these same politicians
are unprincipled and cowardly. They supposedly will not defend
their principles if anyone can run ads against them. They
supposedly lack the capacity to state their views in a way that
will enable others to adequately support their candidacy in the
light of opposition. Actual limits on free speech are
supposedly justified on potential threats that no politician
will be able to expose or withstand or use to rally the voters.
The argument that democracy is advanced when some voices
should not exercise undue influence because they might ``drown
out'' others also runs counter to free speech. And it is also
elitist. It assumes that voters will be manipulated into voting
against their interests because large sums will produce so much
speech as to drown out others and blind them to the voters'
true interests. Tell that to the voters in Virginia's Seventh
Congressional District. The incumbent Congressman outspent his
opponent 26-1. Newspaper reports state that large sums were
spent on independent expenditures on the incumbent's behalf,
many by corporations. No independent expenditures were made for
his opponent. His opponent won. That's some drowning out.
That's some undue influence.
The winner of that primary spent just over $200,000 to win
55% of the vote. Since under the amendment, a limit that
allowed a challenger to win would presumably be ``reasonable,''
Congress or the states could limit spending on House primaries
to as little as $200,000, all by the candidate, with no
obviously unnecessary outside spending allowed.
Whatever the Framers of the Constitution meant by
``corruption,'' and whether their concerns were addressed in
the structural safeguards the Constitution contains, those same
Framers did not believe that the original Constitution needed
any explicit protection of freedom of speech. The adoption of
the Bill of Rights was necessary because despite their great
accomplishments, those same Framers were inadequately
protective of various rights such as the free speech rights
that S.J. Res. 19 would vastly diminish. Nor would we wish to
adopt the crabbed interpretation of free speech that prevailed
in the 1910's, the era the majority believes represented a
halcyon day of campaign finance proposals, when the Supreme
Court upheld against First Amendment objections the convictions
of individuals for peaceably distributing leaflets against the
draft.
As Mr. Abrams stated in a question for the record, ``The
proposed amendment would undermine the very goals it purports
to further. It is worth recalling that as broadly as the First
Amendment has been interpreted, its text focuses on the danger
that Congress will overreach. S.J. Res. 19 raises the very
dangers that the First Amendment aims to curtail by placing
those in power--incumbents--in a position to make it still more
difficult for their actual or potential challengers to become
known and thus more credible as their replacements.''\6\ Those
dangers are explicit, as the majority is ready to ban
``excessive money,'' however self-interested members of
Congress make that determination.
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\6\Id.
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The second set of unpersuasive arguments concerns Citizens
United. That case has been mischaracterized as ``activist.''
Apart from the breathtaking claims of banning books and movies
that the Obama Administration contained in that case, Chief
Justice Roberts' concurrence sets out the necessity for the
Court's decision. Mr. Abrams stated to the Committee that the
Supreme Court acted ``wisely and prudently'' in Citizens
United, a case that ``call[ed] for broader rather than narrower
opinions precisely because of the importance of the
constitutional issues raised and the need for judicial clarity
in preserving constitutionally protected rights.''\7\ As Mr.
Abrams testified, that case continues a view of free speech
rights by unions and corporations that was expressed by
President Truman and by liberal Justices in the 1950s. What
Citizens United overruled was the departure from precedent. And
Citizens United did not give rise to unfettered campaign
spending. The Supreme Court in 1976, in Buckley v. Valeo, ruled
that independent expenditures could not be limited. That
decision was not the work of supposed conservative judicial
activists. Wealthy individuals have been able to spend
unlimited amounts since then. And corporations and others have
been able to make unlimited donations to 501(c)(4) corporations
since then as well.
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\7\Id.
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The majority report incorrectly maintains that Citizens
United adopted the ``extreme and highly questionable
position[]'' that ``for the first time in its history[,] . . .
the First Amendment equally protects corporations and humans
and would not allow for any distinction between the two.'' The
majority is free to disagree with Citizens United, but it will
not do to attack a straw man. Both before and after Citizens
United, individuals may make contributions to campaigns, but
corporations and unions may not use general treasury funds to
do so. The decision relates exclusively to expenditures, and
has no relevance to contributions.
The majority treats all corporations alike, without regard
to the many non-profit corporations. These entities share few
of the attributes of for-profit corporations on which the
majority rests its case for treating corporations differently
from individuals both with respect to contributions and
expenditures. Those non-profit corporations represent efforts
by individual citizens to associate to advance their First
Amendment free speech rights and enhance their ability to
participate in the democratic process with the goal of
persuading their fellow citizens. Contrary to the majority's
derisive treatment of the decision, Citizens United did
``expand[] rights and democracy.''
The decision also enhanced disclosure and transparency. As
Mr. Abrams wrote in questions for the record, ``What Citizens
United did do, however, is permit corporations to contribute to
PACs that are required to disclose all donors and engage only
in independent expenditures. ``If anything, Citizens United is
a pro-disclosure ruling which brought corporate money further
into the light.''\8\
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\8\Id.
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And it is the amendment, not Citizens United, that
``overrul[es] well-settled precedent.'' It does not simply
overturn one case. As Mr. Abrams responded, it overturns 12
cases, some of which date back almost 40 years.\9\ As the
amendment has been redrafted, it may be 11\1/2\ now, depending
on what ``reasonable'' means. Justice Stevens, cited in support
of the amendment, voted with the majority in three of the cases
the amendment would overturn. Members of the Committee may not
like the long established broad protections for free speech
that the Supreme Court has reaffirmed. But that does not mean
there are 5 activists on the Supreme Court. The Court ruled
unanimously in more cases this year than it has in 60 or 75
years, depending on whose figures you use. Its unanimity was
frequently demonstrated in rejecting arguments of the Obama
Administration.
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\9\Mr. Abrams identified as the cases containing points of law that
the amendment would reverse to include (1) Buckley v. Valeo, 424 U.S. 1
(1976) (striking down limits on spending by candidates and their
committees (with the exception of Presidential candidates participating
in the public funding program); striking down limits on independent
expenditures by all individuals; striking down limits on candidates'
spending of their own personal funds); (2) First National Bank v.
Bellotti, 435 US 765 (1978) (protecting a corporation's First Amendment
right to contribute to a ballot initiative campaign; finding that the
value of particular speech ``does not depend upon the identity of its
source, whether corporation, association, union, or individual.''); (3)
Citizens Against Rent Control/Coalition for Fair Housing v. Berkeley,
454 US 290 (1981) (striking down ordinance placing $250 limit on
contributions to groups supporting or opposing referendums); (4)
Federal Election Commission v. National Conservative Political Action
Committee, 470 U.S. 480 (1985) (striking down limits on independent
expenditures by political committees; finding that contributions to
political committees did not pose risk of corruption); (5) Federal
Election Commission v. Massachusetts Citizens for Life, Inc., 479 U.S.
238 (1986) (protecting nonprofit, nonstock corporation's right to use
general treasury funds to engage in express advocacy); (6) Colorado
Republican Federal Campaign Committee v. Federal Election Commission,
518 U.S. 604 (1996) (striking down limits on independent expenditures
made by political party committees; rejecting notion that all party
expenditures should be treated as ``coordinated'' as a matter of law);
(7) Randall v. Sorrell, 548 U.S. 230 (2006)(striking down state law
limiting contributions on the grounds that such low limits interfere
with a candidate's right to raise funds necessary to run a competitive
election and disproportionately burden the rights of citizens and
political parties to help candidates get elected); (8) Federal Election
Commission v. Wisconsin Right to Life, Inc., 551US 449 (2007)(striking
down restrictions on issue ads (ads that do not engage in ``express
advocacy'') during the 30/60 day primary/general pre-election window);
(9) Davis v. Federal Election Commission, 554 U.S. 724 (2008) (striking
down BCRA's ``Millionaires' Amendment'' on the grounds that leveling
electoral opportunities for candidates of different personal wealth is
not a legitimate government objective; finding that the strength of the
governmental interest in campaign finance disclosure requirements must
reflect the seriousness of the actual burden on First Amendment rights;
(10) Citizens United v. Federal Election Commission, 558 U.S. 310
(2010)(striking down BCRA's prohibition on independent expenditures by
corporations and labor unions, including electioneering communications;
permitting corporate and labor union contributions to groups which
engage only in independent expenditures (and do not give directly to
candidates); announcing that political speech cannot be suppressed on
the basis of the speaker's corporate identity; finding that independent
expenditures made in support of candidates by corporations do not give
rise to corruption or the appearance of corruption); (11) Arizona Free
Enterprise Club's Freedom Club PAC v. Bennett, 131 S. Ct. 2806
(2011)(finding that public financing provisions cannot be drawn so as
to burden the speech of privately-financed candidates and independent
expenditure groups absent a compelling state interest; (12) McCutcheon
v. Federal Election Commission, 134 S. Ct. 1434 (2014) (striking down
aggregate limits on how much a donor may contribute to federal
candidates, political parties and PACs over a two-year election cycle;
``Contributing money to a candidate is an exercise of an individual's
right to participate in the electoral process through both political
expression and political association;'' finding that ``[t]he First
Amendment does not protect the government, even when the government
purports to act through legislation reflecting `collective speech''').
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This amendment abridges fundamental freedoms that are the
birthright of Americans. The arguments made to support it are
unconvincing. The amendment will weaken, not strengthen
democracy. It will not reduce corruption, but open the door for
elected officials to bend democracy's rules to benefit
themselves. The fact that the Committee took up this amendment
at all, and regrettably adopted it, is a great testament to the
wisdom of our Founding Fathers in insisting on and adopting a
Bill of Rights in the first place.
We recoil from the majority's citation of poll results on
the popularity of First Amendment protected speech as a basis
to scale back the protections of the Bill of Rights. As Justice
Jackson famously wrote, ``The very purpose of a Bill of Rights
was to withdraw certain subjects from the vicissitudes of
political controversy, to place them beyond the reach of
majorities and officials and to establish them as legal
principles to be applied by the courts. One's right to life,
liberty, and property, to free speech, a free press, freedom of
worship and assembly, and other fundamental rights may not be
submitted to vote; they depend on the outcome of no
elections.''\10\
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\10\West Virginia State Bd. of Education v. Barnette, 319 U.S. at
638.
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We must preserve our Bill of Rights including our rights to
free speech. We must not allow officials to curtail and ration
that right. We must not let this proposal become the supreme
law of the land.
Chuck Grassley.
Orin G. Hatch.
Jeff Sessions.
Lindsey Graham.
John Cornyn.
Michael S. Lee.
Ted Cruz.
Jeff Flake.
X. CHANGES TO EXISTING LAW MADE BY THE JOINT RESOLUTION, AS REPORTED
Pursuant to paragraph 12 of Rule XXVI of the Standing Rules
of the Senate, the Committee finds no changes in existing law
made by S.J. Res. 19, as ordered reported.