Statement of David Keating
President, Center for Competitive Politics

Submitted to the Committee on the Judiciary
United States Senate
June 3, 2014

Mr. Chairman and members of the Committee, thank you for the opportunity to present our views on the hearing titled, “Examining a Constitutional Amendment to Restore Democracy to the American People.” We respectfully request that our statement be entered into the public record.

The constitutional amendment being considered by the Committee today is over four times longer than the First Amendment it seeks to amend.[1] It appears to grant unlimited and frightening powers to Congress to regulate speech if lawmakers can assert any connection to an election.

Congress should not tamper with the First Amendment. Along with the rest of the Bill of Rights, the First Amendment has stood the test of time.

The First Amendment to the United States Constitution eloquently begins with five words commanding that “Congress shall make no law…” Unfortunately, Congress has too often ignored these words and passed many misguided campaign finance laws that have stifled political speech and done nothing to improve public confidence in government.

Senator Tom Udall’s (NM) S.J. Res. 19 would revoke nearly four decades of campaign finance jurisprudence from the Supreme Court and greatly reduce the quantity (and likely quality) of debate in this country. As written, the amendment could be read in myriad ways and fundamentally miscomprehends the free press clause. It is a rhetorical document that highlights the difficulty in tampering with the First Amendment. More than anything, it bears stating that the amendment would essentially overturn the First Amendment to the United States Constitution. What’s equally remarkable is that 42 members of the senate support such an idea.

Unsurprisingly, observers of Congress haven’t been as warm to this legislative meddling with Americans’ First Amendment speech rights. Bloomberg View’s Jonathan Bernstein characterized this constitutional amendment proposal as “bad policy and bad for democracy.”[2] In analyzing the motivations behind the amendment, The Cato Institute’s Trevor Burrus warned that “[g]iving elected representatives the power to regulate the process by which they get elected is a terrifying proposition.”[3] The Las Vegas Review-Journal wrote that “the electorate should be repulsed by the proposal because it’s an incumbent-protection scheme. Giving elected officials control over the speech of their adversaries is a dangerous idea. Americans should remain free to ruthlessly criticize their government — and blow a fortune doing so, if they wish.”[4] The Wall Street Journal cautioned that “[o]nce you’ve opened the First Amendment for revision by politicians, and reinterpretation by judges, anything can happen.”[5] The Weekly Standard’s Terry Eastland remarked that “[t]he Udall amendment would effectively remove political speech from the speech protected by the First Amendment and relocate it in a new amendment, where it would assume the guise of a political activity to be strenuously regulated.”[6]

Opposition to this proposal can be fairly characterized as bipartisan. Former White House Counsel to President Barack Obama, Bob Bauer, noted that “[t]he case for a constitutional change must rest on the claim that the problem an amendment would address is so fundamental that, in the words of James Madison, it qualifies as one of the ‘great and extraordinary occasions’ for revising the founding document,” and challenged supporters of Senator Udall’s amendment proposal to furnish evidence that would substantiate their claims.[7] The Campaign Legal Center’s Senior Counsel Paul S. Ryan, an advocate of more campaign finance regulation, critiqued the amendment’s vagueness and unpredictable enforcement, noting that “it’s entirely impossible to predict the impact of this amendment, even if ratified.”[8]

If adopted, Senator Udall’s constitutional amendment would help entrench those in Congress by insulating incumbent politicians from criticism and granting members of Congress unprecedented power to regulate the speech of those they serve.

Senator Udall’s Constitutional Amendment to Amend the First Amendment

In announcing his support for Senator Udall’s amendment and intent to bring it to a vote on the Senate floor, Senator Majority Leader Harry Reid has argued that the amendment is necessary to “keep our elections from becoming speculative ventures for the wealthy,”[9] and has explicitly identified brothers Charles and David Koch, two billionaires associated with libertarian causes, as individuals whose influence he wishes to curb.[10] Furthermore, he has cited Justice John Paul Stevens’ support of a constitutional amendment as “the nudge that [he] needed.”[11]

The Udall amendment is not the same amendment supported by Justice John Paul Stevens, although the basic thrust of the two texts is the same.[12] The Udall proposal is designed to overturn essentially all of the Supreme Court’s constitutional jurisprudence going back to the 1976 (and near-unanimous) decision in Buckley v. Valeo.[13] Even given this ambitious intention, however, as the following analysis will demonstrate, many of the practical effects of the amendment cannot be reliably predicted.

I. Section 1 of S.J. Res. 19 is written so broadly as to permit members of Congress indeterminate power to regulate political speech.

The first provision states that “[t]o advance the fundamental principle of political equality for all, and to protect the integrity of the legislative and electoral processes, Congress shall have power to regulate the raising and spending of money and in-kind equivalents with respect to Federal elections, including through setting limits on—(1) the amount of contributions to candidates for nomination to, or for election to, Federal office; and (2) the amount of funds that may be spent by, in support of, or in opposition to such candidates.”[14]

This section begins with a constitutional rarity: a preamble.[15] Consequently, while it grants Congress the power to limit contributions and expenditures concerning candidates, it also justifies Congress having this power in order to “advance the fundamental principle of political equality for all, and to protect the integrity of the legislative and electoral processes.” This may suggest that Congress may legislate in this area only for this purpose and not others, and that Congress must somehow evidence this subjective intention when passing laws. How two deliberative bodies containing hundreds of voting members can meet such a subjective-intent test is unclear and was probably not considered by the drafters.

The larger issue is that, under our present system, it is unconstitutional to strengthen the voices of some individuals at the expense of others. The Court has explained that “equalizing campaign resources ‘might serve not to equalize the opportunities of all candidates, but to handicap a candidate who lack[s] substantial name recognition or exposure of his views before the start of the campaign.’”[16]

Because of this, efforts to ‘level the playing field’ do “not serve ‘a legitimate government objective,’ let alone a compelling one.”[17] Under the Udall regime, this would be flipped on its head – government efforts to equalize campaign resources might have to be defended on the grounds of “advanc[ing]…political equality for all,” or “to protect the integrity of the legislative and electoral processes.”

Second, it grants broad power to Congress to regulate spending in order to “protect the integrity of the legislative and electoral processes.” Notably, the amendment does not use the familiar phrase “corruption or the appearance of corruption” – the present permissible rationale for the government’s restriction of campaign contributions.[18]

This could represent a sea change, because under Buckley and its progeny, “the Government’s interest in preventing the appearance of corruption is equally confined to the appearance of quid pro quo corruption…[thus], the Government may not seek to limit the appearance of mere influence or access.”[19] “The fact that speakers may have influence over or access to elected officials does not mean that those officials are corrupt.”[20] Under the Udall amendment, it may be possible to regulate speech on a generic favoritism or influence theory. No one can say with certainty what such a theory would look like, except that it would be broader and less defined than the law at present.

In particular, it invites Congress to discriminate amongst entities that have differing levels of “influence,” based upon public perception, instead of any kind of hard data. Judges are routinely asked to defer to Congress in this area. Under this amendment, they may be asked to defer to Congress’s determination that corporations, but not unions, may contribute to candidates,[21] or that nonprofit corporations like the Sierra Club may be banned from mentioning candidates for office when discussing environmental issues, or that family members of prominent media personalities may be regulated differently from less-connected Americans. A corruption standard helps prevent such gamesmanship; an “integrity” or “political equality” standard would not.

Next, the amendment permits “Congress…to regulate the raising and spending of money and in-kind equivalents with respect to Federal elections.” What qualifies as an “in-kind equivalent” is unclear, but this would likely be read to permissibly restrict, for instance, a person from volunteering for a campaign.[22]

The text then includes two examples of how Congress may advance equality and integrity. A close reading of the preamble shows that these are just that:  examples. Congress’s power to regulate in the area of speech is clearly broader under this text, as the preamble uses the phrase “including through setting limits on [“contributions” and funds “spent” on candidates]. Consequently, it is impossible to fairly read this amendment as narrowly targeted to spending in elections. While perhaps intended for rhetorical flourish and popular consumption, the broad grant of power in the beginning of the amendment is precisely that:  a broad grant. It is not apparent that anyone has seriously considered the dangers posed by allowing Congress, under the rhetorical cover of opposing Citizens United, to broadly regulate speech. Nevertheless, the examples given are likely intended to be central to the operation of the amendment, although that is not the ultimate effect of the chosen language.

To illustrate these issues, let’s examine how this amendment might work, if ratified. In 2023, members of Congress vote to set a spending limit of $500 million on candidates for President.  The new law, as provided for in the amendment, regulates in-kind equivalents, including the value of celebrity endorsements for candidates. In doing so, Congress leaves existing campaign contribution limits untouched. The spending limit applies to 2024 races, and is justified in order to advance “political equality for all,” as guaranteed by Senator Udall’s amendment.

In the middle of a heated Democratic primary campaign in advance of the 2024 presidential election, Candidate A and Candidate B are locked in a dead heat in the polls. After much consideration, Oprah announces that she supports Candidate B’s campaign.

To remedy the non-monetary value of Oprah’s verbal endorsement, Candidate B must now account for the fair market value of the endorsement as provided by the Federal Election Commission regulations and ensure other spending is reduced by that amount.

As examined in the scenario above, the Udall amendment permits Congress to regulate campaign spending in this or seemingly any fashion.

Section 1 also permits limits on “the amount of funds that may be spent by, in support of, or in opposition to” candidate campaigns. This would permit Congress to cap spending by candidates at a specific amount. This power is explicitly extended to speech “in support of, or in opposition to” candidates – essentially allowing Congress to limit all speech about candidates.

This raises a host of unanswered questions. Would spending by independent groups require lowering the amount that could be spent by a candidate? What would be included in “support of” or “opposition to” a candidate? Who would decide what is support and what is phony support that highlights an unpopular stand by a candidate? Given the broad grant of authority over political speech, “support of,” or “opposition to” a candidate could constitute virtually all speech about politics.

For example, in June of 2004, the American Civil Liberties Union (ACLU) ran an advertisement featuring former Navy Judge Advocate General Real Admiral John D. Hutson (ret.) asking “How can we fight to uphold the rule of law if we break the rules ourselves?” and asserted that “we are conducting the war against terrorism in a manner that is inimical to those values of freedom of justice.”[23] The ad did not mention President Bush, then a candidate for re-election, whose campaign largely focused on the President’s conduct of the War on Terror. The New York Times nonetheless characterized the ad as a negative ad urging Americans to vote Bush out of office.[24] The Buckley Court explicitly rejected a reading of the Federal Election Campaign Act that allowed limits on independent speech precisely because it “would provide no security for free discussion.”[25]

Under the Udall regime, voter guides, issue advertisements, church bulletins (a sermon on marriage or abortion could be deemed inherently “political,” and local candidates may well be identified with one or another position), and the like could all be limited – or even banned – if their funders might violate the “fundamental principle of political equality” merely by being organized as a corporation or labor union. This amendment would provide a breathtaking amount of power to congressional incumbents to set limits on speech about policy or campaigns, effectively making the First Amendment a dead letter for speech.

II. As Section 2 simply enumerates the powers bestowed in Section 1 to the states, the same concerns apply with equal weight.

Section 2 merely applies the language of section 1 to the states, with all of the concerns that apply there. Specifically, section 2 could resuscitate Arizona’s Rube Goldberg equalization scheme, which was struck down by the Supreme Court in 2011. That system, where monies spent by privately funded candidates and outside groups could provide additional funding to a publicly funded candidate, was eliminated on the grounds that it served to “level the playing field.”[26] Under the Udall proposal, such a system could potentially survive constitutional scrutiny.

III.  Section 3’s “media exemption” is unclear and inserts further uncertainty into the constitutional amendment’s text by failing to define what qualifies as “the press” and leaving Congress and regulators to decide who qualifies as “media” at their whim.

The third section of the amendment provides that “[n]othing in this article shall be construed to grant Congress the power to abridge the freedom of the press.” Presumably, this is intended to serve as a “media exemption” – a provision often included in campaign finance statutes to preserve the rights of The New York Times editorial board and Fox News’s Sean Hannity to endorse and campaign for candidates.

But the scope of such an exemption is unclear. The right to a free press does not extend a specific speech right to media corporations that other Americans do not have. The free press clause is merely a natural corollary to the free speech clause, it protects the right to publish and distribute the written word.

The Supreme Court has “consistently rejected the proposition that the institutional press has any constitutional privilege beyond that of other speakers.”[27] And even in the event that “the press” did confer a separate sanction for certain speech, the Supreme Court in 2010 noted that “[w]ith the advent of the Internet and the decline of print and broadcast media, moreover, the line between the media and others who wish to comment on political and social issues becomes far more blurred.”[28]

When Justice Stevens was asked to explain what was and was not press under his proposed amendment, not even he could answer.[29]

This uncertainty over who qualifies for the media exemption may not faze the regulators, however, who tend to favor established players at the expense of newcomers. The Federal Election Commission, for example, has traditionally applied the media exemption by asking, “[f]irst . . . whether the entity engaging in the activity is a press or media entity.”[30] In other words, in order to qualify as a media entity, a speaker must first be a media entity. The Udall amendment’s special exemption for the press would further entrench this model of circular reasoning and preferential treatment for certain speakers over others.

A Historical Perspective on Campaign Finance Laws

Less than forty years ago, there were no limits at all on individual contributions to federal candidates, except for limited restrictions on government employees and contractors. The Committee should keep in mind that without such limits, voters elected FDR, Truman, Eisenhower, Kennedy, and Johnson as president. Was major legislation such as the Voting Rights Act, Medicare, and the Civil Rights Act the product of a corrupt system, given that individual contributions were unlimited to any one candidate? Of course not.

Consider the role of this system that allowed unlimited contributions to candidates and its impact on the 1968 Democratic primary and the debate on the Vietnam War. In late November 1967, Minnesota Senator Eugene McCarthy decided to challenge President Lyndon Johnson for the Democratic nomination. At first, people thought McCarthy’s campaign would be quixotic. But with no contribution limits, Senator McCarthy assembled a well-funded campaign from a small number of wealthy donors who shared his opposition to the Vietnam War. McCarthy concentrated on New Hampshire’s primary, and the number one issue in his campaign was to end the war.

His wealthy backers gave the equivalent of almost $10 million in today’s dollars to fund the campaign, an enormous amount at the time. As a result of his showing in New Hampshire, McCarthy forced President Johnson out of the race, a feat not duplicated since the enactment of contribution limits.

Attached is a copy of an article by Washington Post columnist Richard Cohen that describes what happened in the McCarthy campaign in more detail.

Today, at least a dozen states, including many of the least corrupt[31] and best managed[32] states in the nation, have no limits on individual contributions to candidates or parties. This Committee would be wise to consider ways to unburden citizens’ right to speak, rather than consider ways to further limit citizens’ voices.

*          *          *

Proponents of S.J. Res. 19 argue that this amendment is needed to promote equality and to “keep our elections from becoming speculative ventures for the wealthy.”[33] Yet, what they are supporting is a vague and poorly drafted amendment that would amend our Constitution, shred the protections of the First Amendment, stifle political dissent, and grant members of Congress the power to control political speech.

Contrary to the justification contained within Senator Udall’s amendment, the First Amendment is not – and never has been – conditioned upon a level playing field. In fact, there has never been a time in American history where everyone spoke equally and was heard equally, and there never will be. Few will ever be as famous as Oprah, run a newspaper, or host a television program. The purpose of the First Amendment is to protect us from being censored or punished for our views by government, so that we may always speak without limit to other citizens. This amendment proposal threatens that vital right.

We hope that this Committee recognizes the importance of the First Amendment and rejects any measure to amend it. Thank you for considering our comments.

You can view the statement here.

https://ifs-site.mysitebuild.com/wp-content/uploads/2014/06/2014-06-03_Keating-Statement_CCP_Senate-Judiciary-Committee_SJ-Res-19-Constitutional-Amendment-Hearing.pdf