SJR19 and MTA Proposed Amendment vs. 1st Amendment - Incorrect and Spurious

October 7, 2014

By Jean E. Fisher, Metro Denver Move to Amend

Section 2 of the Move to Amend’s (MTA) proposed 28th Amendment to the U.S. Constitution is the “money is not free speech” section.  Senate Joint Resolution 19 (SJR19), a different proposed amendment that raises issues very similar to MTA’s Section 2, received more attention in Congress this year than our proposal.  Although the full Senate has not voted on SJR19 and currently it appears to be blocked, the discussion around it revealed the likely arguments opponents will raise against Section 2 of the MTA proposal.  The points below briefly explain why such arguments against Section 2 are incorrect and spurious. 

The proposed amendment of SJR19, introduced in the 113th Congress on June 18, 2013, states that Congress and state legislatures are authorized to regulate and set reasonable limits on the raising and spending of money to influence elections and to permit such regulation to differentiate between natural persons and corporations, including by prohibiting corporations from spending money to influence elections.  The Senate Judiciary Committee held a hearing on the resolution on June 3, 2014, and later voted to send it to the full Senate.  The Senate voted on September 11, 2014, whether to close debate on the resolution and take an up or down vote on its merits.  This “cloture” motion failed 54-42 on a party line vote.  (Sixty votes were needed to end debate; if the cloture motion had succeeded then the resolution itself, being a proposed constitutional amendment, would have needed a two-thirds majority to pass the Senate.)  According to the website Congress.gov, the meat of the resolution’s wording is:
 
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.
 
A video of the hearing is at http://www.judiciary.senate.gov/meetings/examining-a-constitutional-amendment-to-restore-democracy-to-the-american-people

A key argument of opponents is that SJR19 undercuts First Amendment free speech rights, with Ted Cruz claiming it will “repeal” the First Amendment.  The argument that SJR19 would limit free speech rights is the kind of simplistic claim that may be superficially appealing to some people because, on its face, the First Amendment seems to say that any kind of restriction on any type of speech is unconstitutional.  (“Congress shall make no law ... abridging the freedom of speech.”)  Below are some ideas for countering the claim that SJR19 would undermine our free speech rights. 

[Note:  The amendment that Move To Amend supports, House Joint Resolution 29, is stronger than SJR19 because the MTA proposal (1) applies to ballot measures as well as candidate elections, (2) covers local as well as federal and state elections, and, most importantly, (3) contains a section stating that Constitutional rights and protections apply only to natural persons and not to artificial entities.] 

BRIEF RESPONSE

1. SJR19 doesn’t change the First Amendment one bit.  It would add new language to the Constitution.

2. One can only say that SJR19 limits speech if one accepts the artificial definition of speech the Supreme Court invented in 1976 and used in Citizens United.  That is, only if you redefine “speech” to be exactly the same thing as “spending money” can you logically claim that limiting money expenditures during election campaigns is the same as limiting speech.  If you think about speech as most people do, and as the founders of our country thought of it, allowing Congress to set reasonable limits on election expenditures in no way limits people’s rights to express their opinions and fully debate campaign issues and discuss candidates’ qualifications. 

 
3. But you don’t have to agree that the Supreme Court defined speech wrong to see that SJR19 wouldn’t undermine our First Amendment rights.  Even if I say, “Ok, I agree with them that limiting election expenditures may cut out some of those hostile and repetitive TV ads that bombard us before elections and that this would decrease the total amount of speech out there,” the fact is that the Supreme Court has always upheld the principle that in some instances it is legitimate—and necessary—to place certain restrictions on speech in order to protect our democratic processes or for other reasons. 

Polls show the majority of Americans believe our democracy has been corrupted by the vast and ever-growing sums of money flowing into elections.  Placing reasonable limits on contributions and expenditures by campaigns and independent expenditures will prevent corruption, both the blatant bribery that repeatedly rears its head (known as quid pro quo corruption) and the more concealed corruption that is obviously in play, where candidates are well aware the only way to get elected is to cast votes that benefit the big donors.  Campaign contribution and expenditure limits will restore integrity in our democratic processes and citizens’ faith in government. 

Because accomplishing these things is so important, any incidental effect on speech does not violate the First Amendment.  The Citizens United Supreme Court only reached the opposite conclusion because they denied that the massive sums of money that flow at election time lead to corruption or the appearance of corruption.  Since the Supreme Court is so out of touch with public sentiment and knowledge, Sen. J. Res. 19 will clarify for the Court what citizens and Congress already know:  unlimited campaign expenditures corrupt our democracy.

Note:  If SJR19 had contained a provision clarifying that corporations are not the same as natural persons and do not have rights under the Constitution and Bill of Rights (as Move to Amend proposes), we would only have to make the above arguments with respect to individuals and unincorporated associations of people.  Under such a provision, corporations would not be covered by the First Amendment and so could not claim that limits on their contributions to expenditure-only PACs and their independent expenditures would violate their First Amendment rights.  Corporations could still be granted legal rights but these rights would not flow from the Constitution but rather, as the Constitution’s framers apparently intended, from laws passed by the states and Congress.

EXPANSION OF POINTS MADE ABOVE IN THE BRIEF RESPONSE

SJR19 Does Not Undermine Our Free Speech Rights

1. SJR19 doesn’t change the First Amendment one bit. The constitutional amendment proposed by SJR19 does not modify the wording of the First Amendment.  The proposed amendment simply clarifies what the Constitution already implies:  because Congress has the authority to regulate elections for U.S. Congress people and Senators (Art. 1 Sec. 4), Congress may limit campaign contributions and expenditures.  The amendment also makes it clear that state legislatures can do the same for state elections.  SJR19 also explicitly states that neither Congress nor the states may abridge the freedom of the press.

The amendment is necessary because in the past few years, the Supreme Court has drastically undercut Congress’s constitutional authority over elections, permitting super-wealthy individuals and corporate CEOs to corrupt our democratic processes.  Although beginning with the Tillman Act of 1907, Congress and the states have passed a number of election contribution and expenditure limits that were designed to prevent moneyed interests from buying elections and undermining our democracy, and although these laws were widely accepted for many years, beginning in 1976 the Supreme Court started elevating money over democracy.  In its 2010 Citizens United decision, the Court overturned precedent that had permitted limitations on political spending, exploiting a skewed notion of speech (spending money = speech) to trump Congress’s right to protect our democracy.

The proposed amendment will authorize Congress to pass expenditure limits that ensure all citizens can meaningfully participate in electing and interacting with their representatives.  This, in turn, will restore people’s faith that government officials have been legitimately elected and will vote with integrity to represent all their constituents, not just the wealthy and corporate interests.  Because the amendment requires that any contribution and spending limits Congress passes must be reasonable, the impact such limits would have on the First Amendment would be minimal and incidental to this critical purpose.  In fact, the amendment is necessary to preserve meaningful First Amendment speech rights for the 99 percent, whose voices are now drowned out by the mega-spending of corporations and the wealthy.

Spending Money Is Not Identical To Speech

2. One can only assert that SJR19 limits speech by relying on the artificial definition of speech that the Supreme Court employed in Citizens United and other decisions since 1976.

   
In Citizens United, the five Supreme Court Justices who decided that expenditures limits violate the First Amendment reached this conclusion by making the incorrect and illogical assumption that spending money is exactly the same thing as speech.  The other four Supreme Court Justices who voted on the Citizens United decision strongly disagreed with this idea.  The only way someone can claim that reasonable ceilings on campaign expenditures and independent expenditures limit speech is by starting from the notion that “spending money” is identical to “speech.”  This is what the majority of the Court did.  But the First Amendment does not mention money, the Constitution does not equate speech with money, and it is obvious that money and speech are different.

The proposed amendment stops the illogical and incorrect one-to-one linkage between money and speech that the Supreme Court invented.  It is true that many political campaign messages do require certain expenditures to be effectively communicated in today’s media markets.  But it simply is wrong to conclude that all campaign expenditures are a form of or related to political speech.  (As retired Supreme Court Justice John Paul Stevens pointed out in testimony before the Senate in April 2014, “campaign funds were used to finance the Watergate burglary.”)

Members of Congress will draw on their own campaign experience and the knowledge of experts to set reasonable campaign expenditure limits that enable candidates and interested citizens to fully and fairly communicate campaign messages.  No one’s right to express and disseminate their values, qualifications, positions on issues, etc., will be impeded, but the hugely disproportionate expenditures that allow corporate executives and the super-wealthy to overwhelm the political speech and ideas of the 99 percent can be dialed back.

It is useful to remember that throughout our history, some members of the Supreme Court have clung to the inhuman and anti-democratic prejudices commonplace in their respective eras.  For example, in 1857, the Supreme Court said that anyone whose ancestors came from Africa was subordinate and inferior to any white person and therefore it was appropriate for whites to own blacks as their property.  Dred Scott v. Sandford, 60 U.S. 393 (1857).  And it was not until 1954 in Brown v. Board of Education, 347 U.S.483, that a more-humanely-constituted Supreme Court finally declared separate educational facilities to be inherently unequal, striking down the Court’s decade-old defense of segregation.  Obviously, the Supreme Court does not always get it right.   

     
Congress Has A Constitutional Right and A Duty To Regulate Elections In Order To Safeguard Our Democracy Against Corruption and the Appearance of Corruption

3.   Even if one takes the position that limiting contributions and expenditures somehow limits speech, the Supreme Court has always upheld the principle that it is permissible to place restrictions on speech in order to meet an overriding government interest, such as protecting our democratic processes.  The proposed amendment upholds this principle.

 
There are many examples where the Supreme Court has found that laws that affect speech do not violate the First Amendment.  Many of these were cited by Justice John Paul Stevens in his excellent dissenting opinion in the Citizens United case, which can be found at http://www.law.cornell.edu/supct/html/08-205.ZX.html

For example, the Supreme Court decided that even though spending money constitutes speech, caps on the amount of money individuals and PACs may contribute to candidates do not violate the First Amendment.  The Court’s justification is that contribution limits prevent candidates from becoming beholden to high donors and granting them political favors in exchange for contributions.  That is, contribution limits prevent corruption and the appearance of corruption, which is an overriding government interest.  The Court concluded that because limits on contributions serve this overriding government interest and only minimally impinge on a donor’s speech, such limits do not violate the First Amendment.  Buckley v. Valeo, 424 U.S. 1 (1976).

The Supreme Court affirmed a district court decision that prohibited foreign nationals from making election contributions and expenditures because the government has a compelling interest in preventing foreign influence over our democracy.  Blumen et. al v. FEC, 565 U.S. (2012).

The Court has found that state laws prohibiting the distribution or display of campaign materials near a polling place do not violate the First Amendment even though these laws limit speech because the laws serve a compelling government interest in preventing voter intimidation and election fraud and don’t significantly impinge on speech rights.  Burson v. Freeman, 504 U.S. 191 (1992).

The Supreme Court said that the speech of students in public schools may be restricted because a school’s job is to teach appropriate values and it does not violate the First Amendment to prohibit children from using sexually explicit, vulgar, and inappropriate language in school.   Bethel School Dist. No. 403 v. Fraser, 478 U.S. 675 (1986).

The Supreme Court approved restrictions on prisoners' speech when the prison administration prohibited prisoners from asking other prisoners to join the prisoners’ union because “the restrictions imposed are reasonable, and are consistent with the inmates' status as prisoners and with the legitimate operational considerations of the institution.”  Jones v. North Carolina Prisoners' Labor Union, Inc., 433 U. S. 119, 129 (1977).

The Supreme Court upheld the court-martial of a military doctor who had made public statements urging African American soldiers to disobey orders to go to Vietnam and calling Special Forces personnel "liars and thieves," "killers of peasants," and "murderers of women and children."  The Court said, “While the members of the military are not excluded from the protection granted by the First Amendment, the different character of the military community and of the military mission requires a different application of those protections.”  Speech that would be protected under the First Amendment if made by a civilian is not protected when said by someone in the military if it would undermine the military command structure.  Parker v. Levy, 417 U. S. 733, 758 (1974).

As shown above, the Supreme Court recognizes that there are circumstances where lawmakers may limit speech without running afoul of the First Amendment.  The majority of the American people, as well as many in Congress, believe the influx of money in politics has corrupted the election and law-making processes and shut out meaningful participation by the majority of citizens.  Congress passed the Bipartisan Campaign Reform Act in 2002 to prevent such corruption, but in Citizens United the Court declared several provisions of the BCRA Act unconstitutional, even though the provisions had previously been declared valid by a differently-constituted Supreme Court. 

The SJR19 amendment was designed based on real-world instances of corruption and improper pressure that lawmakers and other participants in U.S. elections have encountered during the last quarter-century, and corrects the Supreme Court’s mistaken perception that corruption does not exist.  If the amendment were to have an effect on First Amendment rights, the impact on speech pales in comparison our critical need to protect our electoral process from corruption.

CONCLUSION

The above arguments address why limitations on campaign contributions and expenditures do not undermine our First Amendment free speech rights.  However, it is not only money in politics that is destroying our democracy.  The ability of corporations to evade other democratically-passed laws also undermines the people’s will and real people’s rights.  Corporations are able to allege that campaign finance limits interfere with their First Amendment rights only because the Supreme Court says that as “persons” they have those rights.  In some other decisions in which the Court decided “corporation” means the same thing as “person,” the Court bestowed additional Constitutional rights on corporations and contravened laws passed by Congress, the elected representatives of the people.  The MTA web page provides information detailing the harm that has resulted from these decisions.

Theoretically, the Supreme Court could eventually reverse course and reach different conclusions favoring people over corporations and democracy over corporate control.  The likelihood of that happening soon is very low.  Our democracy is at stake and the members of Move to Amend are fighting for a Constitutional amendment to make it clear that (1) spending money is not identical to First Amendment speech and (2) corporations are not persons under the U.S. Constitution.
 

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