In the News
Roll Call: A Constitutional Right to Incumbency?
By Eric Wang
Imagine if, 20 years ago, Congress had passed a law limiting each car manufacturer or retailer to spending no more than a certain amount per year on research and development or expanding its operations. Large, established institutions like General Motors or Walmart might have done just fine. But startups like Tesla and Amazon.com would never have been able to make the capital-intensive investments to get off the ground, and consumers would have been worse off for it.
Today, the Senate Judiciary Committee will hold a hearing on S J Res 19, a proposal to amend the U.S. Constitution to allow Congress and state legislatures to pass exactly this type of law when it comes to how much money politicians, their critics, and their supporters may raise and spend in appealing to voters about who may wield the lawmaking power in the first place. Specifically, the proposed amendment language would authorize limits on “the amount of contributions to candidates” for elective office, as well as “the amount of funds that may be spent by, in support of, or in opposition to such candidates.”
Perhaps it is fitting that the sponsor of this proposal is Sen. Tom Udall, D-N.M., the scion of a political dynasty that stretches back more than 100 years and includes his cousin Sen. Mark Udall, D-Colo., his father, former Secretary of the Interior and Rep. Stewart Udall, D-Ariz., and his uncle, former Rep. “Mo” Udall, D-Ariz. It is thus also ironic that Sen. Udall’s amendment declares that its purpose is “to advance the fundamental principle of political equality for all.”
The Hill: Conservative group accuses nine Dem senators of unethical conduct
By Peter Schroeder
The group wants the ethics panel to look at Sens. Dick Durbin (Ill.), Chuck Schumer (N.Y.), Carl Levin (Mich.), Michael Bennet (Colo.), Sheldon Whitehouse (R.I.), Jeanne Shaheen (N.H.), Al Franken (Minn.), Jeff Merkley (Ore.), and Tom Udall (N.M.).
In the aftermath of the Supreme Court’s Citizens United decision, many of those lawmakers openly complained about the influx of groups supposedly focused on social welfare that also engaged heavily in political activity. For example, Levin and other lawmakers sent letters to the IRS asking them to take a close look at such 501(c)(4) organizations, many of them conservative.
Of course, the lawmakers were not shy about making their concerns known. In their complaint, the center cites a press release sent out by Durbin in which he said he wanted the IRS to look into spending by Crossroads GPS, the group founded by Karl Rove.
Washington Examiner: Group calls on Senate Ethics Committee to investigate nine senators amid IRS scandal
By Spencer Brown
The Center for Competitive Politics has lodged a formal complaint with the Senate Select Committee on Ethics, urging the committee to investigate nine senators for “improperly interfering with the administrative proceedings of the Internal Revenue Service.”
Newsmax: Ethics Complaint: 9 Senators Involved in IRS Targeting
By Melissa Clyne
After the 2010 Citizens United decision — which found that the First Amendment prohibits the government from restricting political spending by corporations, associations, or labor unions — “Democrats adopted a campaign strategy of attempting to squelch the speech of conservative groups,” Smith and Keating wrote.
Schumer immediately tried, unsuccessfully, to pass legislation known as the DISCLOSE Act, which would have required independent groups to disclose the names of contributors who give more than $10,000 for use in political campaigns, The Washington Post reported in 2012.
Oregonian: Conservative group files ethics complaint against Jeff Merkley and other Democrats in IRS probe
By Jeff Mapes
Merkley’s Republican opponent, Monica Wehby, has been criticizing the senator for the IRS complaint for months, and on Tuesday she called it a “legitimate scandal. Trying to use the IRS to target your political enemies is an ethics violation.”
The complaint charged that the senators were seeking to deter conservative groups from getting involved in political activity by raising the threat of an IRS investigation.
“Attempting to use the IRS for partisan campaign purposes undermines its core revenue function, gravely threatens public confidence in the impartial administration of government, and reflects unfavorably upon the Senate,” the complaint said.
Slate: Libertarians File Ethics Complaints Against Senators Who Asked the IRS to Look Into Campaign Spending
By David Weigel
The campaign to browbeat liberals out of their campaign finance reform push continues today, as the Center for Competitive Politics, run by a former FEC commissioner (Bradley Smith, who won the $250,000 conservative Bradley Prize for his work) and a former Club for Growth leader (David Keating), files an ethics complaint asking whether Democratic senators violated the rights of citizens. How? By sending letters to the IRS (which were public at the time) asking whether the surge of campaign spending by “educational,” disclosure-limiting groups was legal.
New Mexico Watchdog: Tom Udall named in ethics complaint over IRS letter
By Rob Nikolewski
SANTA FE – U.S. Sen. Tom Udall of New Mexico was one of nine Senate Democrats listed in a complaint filed Tuesday with the U.S. Senate Select Committee on Ethics, arguing the senators improperly contacted the Internal Revenue Service to investigate nonprofit political groups.
“Richard Nixon faced impeachment charges for attempting to use the IRS for political purposes,” said David Keating, president of the Center for Competitive Politics, a right-of-center group that describes itself as defenders of free speech. “To varying degrees, each of these senators did exactly this kind of conduct. It clearly violates the Senate rules.”
CCP
Statement of David Keating to the Senate Judiciary Committee on the Constitutional Amendment Proposal
By David Keating
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.
Continues:
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]
Free speech group files ethics complaint against nine senators in IRS scandal
“Richard Nixon faced impeachment charges for attempting to use the IRS for political purposes. These similar actions surely require the Ethics Committee to sanction one or more of these senators or, at the very least, to adopt rules to ensure it never happens again,” said David Keating, president of the Center. “Over many years, both Republicans and Democrats sought to use the IRS for political purposes and this must stop.”
“These senators improperly attempted to use the IRS to suppress the free speech of American citizens for their party’s electoral gain,” said Brad Smith, chairman of the Center and a former Chairman of the Federal Election Commission. “We will fight this type of abuse of power and work to ensure that those who have violated Senate Ethics rules are held to account.”
Amending the First Amendment
Wall Street Journal: Opinion: Shining a Light on Harry Reid
Foley & Lardner Partner Cleta Mitchell on an ethics complaint filed Monday that alleges Senator Harry Reid improperly used taxpayer money to target political opponents. Photo credit: Getty Images.
NRO: Harry Reid’s Assault on Free Speech
By Sen. John Cornyn
After six years of economic stagnation, a pile of foreign-policy failures, and an unpopular health-care law, Senate Democrats are desperately trying to change the subject. Led by Democratic majority leader Harry Reid, they’ve returned to their old political well of character assassination and catchy but half-baked policy proposals. The latest issue they’ve chosen? Changing the Constitution’s Bill of Rights to limit the right to free speech under the First Amendment.
The Supreme Court has protected the First Amendment right of Americans to participate in the political process — the heart of the Constitution’s free-speech guarantee. To quote a recent decision, “There is no right more basic in our democracy than the right to participate in electing our political leaders. Citizens can exercise that right in a variety of ways: They can run for office themselves, vote, urge others to vote for a particular candidate, volunteer to work on a campaign, and contribute to the candidate’s campaign.” The opinion further affirms that “the right to participate in a democracy through political contributions is protected by the First Amendment, but that right is not absolute.”
Apparently, that right to free speech is too absolute for Senator Reid. Without any positive agenda, he’s spent weeks bemoaning the right of individual Americans to commit their resources, within certain limits, to the political process.
Washington Post: Floyd Abrams on the proposed constitutional amendment to let government restrict spending for election-related speech
By EUGENE VOLOKH
When James Madison introduced the Bill of Rights to the First Congress he stated that the courts — “independent tribunals of justice,” he called them — would “consider themselves … the guardians of those rights,” that they would serve as an “impenetrable bulwark against every assumption of power in the legislative or executive” and that “they will be naturally led to resist every encroachment upon rights expressly stipulated for in the Constitution.”[1] In no area has that been more true than with respect to the First Amendment. “No other nation,” Charles Fried has written, “claims as fierce and stringent a system of legal protection for speech. It is the strongest affirmation of our national claim that we put liberty above other values.”[2] It has been, of course, the Supreme Court, serving as the guardian of the First Amendment, that has accomplished that and has thus assured that the United States became and remains the freest nation that ever existed in the history of the world.
Of course, many of the Court’s opinions have been controversial. Some have not withstood the demands or judgments of history. But no ruling before and after that in the Citizens United case, providing First Amendment protection, has ever been reversed by a constitutional amendment. No speech that the Court has concluded warranted First Amendment protection has ever been transformed, via a constitutional amendment, into being unprotected speech and thus a proper subject of criminal sanctions. In fact, no amendment has ever been adopted limiting rights of the people that the Supreme Court has held were protected by the Bill of Rights in any of the first ten amendments.
Candidates, Politicians, Campaigns, and Parties
First Amendment News: Senator Cruz Introduces Two Free Speech Bills
By RONALD K.L. COLLINS
The first bill is entitled “the SuperPAC Elimination Act of 2014.” The bill was offered as an amendment to the Federal Election Campaign Act of 1971. The proposed law would “eliminate limitations on direct contributions to candidates” and “require disclosure of certain contributions within 24 hours or receipt, and for other purposes.” The bill’s stated purpose would be to “allow unlimited direct contributions by citizens and lawful permanent residents of the United States to candidates in Federal elections.”
The disclosure section of the bill provides in relevant part that “[i]f a candidate receives an aggregate amount of contributions in excess of $200 from any contributor during a calendar year the principal campaign committee of such candidate shall submit to the Secretary or the Commission, and the Secretary of State, as appropriate, in writing, a notification containing the name of the candidate and office sought by the candidate, the identification of the contributor, and the date of the receipt and amount of the contribution.”
