[Senate Report 113-223]
[From the U.S. Government Publishing Office]

                                                       Calendar No. 471
113th Congress                                                   Report
 2d Session                                                     113-223




                 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.


  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

 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.
    \1\424 U.S. 1 (1976).
    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.
    \2\129 Cong. Rec. S.14126 (May 26, 1983) (statement of Sen. 
    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\
    \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).
    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\
    \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).
    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-
    \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).
    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\
    \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-
    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 
    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 
    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 
    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 
    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 

                            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 
    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 
    \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/
    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. . . 
    \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://
    \12\Richard Lee, 3 Debates in the Several State Conventions on the 
Adoption of the Federal Constitution, at 43 (Jonathan Elliot ed. 1827).
    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\
    \13\The Federalist No. 57 (Madison).
    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 
    \14\Charles Pinckney, 4 Debates in the Legislature and in 
Convention of the State of South Carolina, at 302 (Jonathan Elliot ed. 

          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 
    \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 
    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://
    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 
    \21\Theodore Roosevelt, Speech on The New Nationalism in 
Osawatomie, Kansas (Aug. 31, 1910).
    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 
    \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.
            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 
    \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 
    \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 
    \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 

            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 
    \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 
    \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 
    \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-
    \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).
    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://
    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 

          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 
    \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://

    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-
    \92\Tarini Parti, $7 Billion Spent on 2012 Campaign, FEC Says, 
Politico, Jan. 31, 2013, available at http://www.politico.com/story/
    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 
    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/
    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 
    \97\Ciara Torres-Spelliscy, What a Waste of Corporate Money, 
JURIST--Forum, Dec. 3, 2012, http://jurist.org/forum/2012/12/torres-
    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://
    \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 
    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 
    \102\John Geluardi, Stephen Hobbs, et al., Election recap: Voters 
seek familiar faces, Richmond Confidential, Nov. 8, 2012, available at 
    \103\See Kanhema, supra note 101; Geluardi, supra note 102.
    \104\Kanhema, supra note 101.
    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/
    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 
    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-
    \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, 
summ.php?cycle=2012&disp=D&type=V&superonly=S (last visited July 24, 
    \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/
    \114\Donor Demographics, Campaign Contributions, 2011-2012, Center 
For Responsive Politics, http://www.opensecrets.org/bigpicture/
            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://
    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\

                 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.


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 
    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.

                               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.


    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 
    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 
    \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.


    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 
    \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/
    \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.


    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 
                                              Douglas W. Elmendorf.

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.


    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


                          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 
    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 
    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 
    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 
    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 
    \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 
    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.
    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.
    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\
    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 
    \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''').
    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 
    \10\West Virginia State Bd. of Education v. Barnette, 319 U.S. at 
    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.


    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.