What Sen. Schumer and Rep. Deutch Get Wrong About the Senate’s Constitutional Amendment Proposal

On Tuesday, Sen. Chuck Schumer and Rep. Ted Deutch penned an opinion piece in Politico Magazine purporting to respond to criticisms of a Democratic effort to amend the Constitution to overturn Buckley v. Valeo and Citizens United v. FEC. It, unfortunately, is riddled with obfuscations, straw man arguments, and factual inaccuracies. The entire article is excerpted below, along with italicized commentary explaining its many errors.

 

Texas Sen. Ted Cruz is shrewdly aware that Americans of every political persuasion are disgusted by big money in politics.

Just as New York Sen. Chuck Schumer and Florida Rep. Ted Deutch are keenly aware that Americans of every persuasion love the First Amendment and don’t want to see it changed for partisan political ends.

He knows that hundreds of elected officials representing millions of people and 16 states have already endorsed a constitutional amendment to overturn Citizens United and related court decisions.

And even more elected officials, representing even more millions of Americans and 34 states, oppose an amendment that would allow the government to ban movies and books. If the amendment had the overwhelming support implied, it would already be part of the Constitution – that’s how democracy works. Scare tactics would be unnecessary.

And because he knows that defending the ability of corporations and a few billionaires to spend millions upon millions of dollars influencing elections is no winning position, he has taken to framing these efforts as plots to repeal the First Amendment.

Another possibility, of course, is that Sen. Cruz actually thinks that altering the First Amendment (which even supporters of this new amendment agree would happen) to allow Congress to ban certain types of political speech is a fundamentally undemocratic idea. Perhaps, he believes that Congress has not demonstrated a propensity to be “reasonable” in the past, and it would be unwise to let incumbent politicians decide what “reasonable” restrictions on political speech look like.

The constitutional amendment that was reported out of the Senate Judiciary Committee last week will not, as Sen. Cruz claims, allow legislators to ban books or silence political opponents. But Sen. Cruz is trying to replace logic with hyperbole, saying that if you’re for this amendment, you’re against the First Amendment.

This new constitutional amendment is expressly intended to “overturn Citizens United.” That case was about the government’s ability to ban a political movie, because the movie was funded by a non-media corporation. Indeed, that was the government’s litigating position at the first oral argument held in front of the Supreme Court. And the justices agreed – they ruled against the government in Citizens United, at least in part, because of the frightening implications of book banning.

His overheated rhetoric is an attempt to ignore an important truth in the history of our Constitution: We have always had balancing tests for every amendment. No amendment is absolute.

As a lawyer, Senator Schumer also knows that the Supreme Court has consistently applied balancing tests in free speech cases. Indeed, in the 1976 Buckley v. Valeo opinion, the Court upheld a number of restrictions on speech and association. The problem is that the restrictions this amendment’s proponents want now could never pass those balancing tests – because they want to wholesale ban entire categories of speech and association.

Sen. Cruz’s argument at a Judiciary hearing that any restriction on speech will cause an inexorable slide into censorship and tyranny defies the constitutional tradition of balancing the right to free speech with other important ideals like safety, privacy and democratic equality. The first balancing test is safety: Does Sen. Cruz really believe that everyone should be allowed to falsely cry “fire” in a crowded theater? Another is privacy: Libel laws protect against the use of speech to defame or slander without evidence. Anti-child pornography laws are an eminently justifiable regulation on the First Amendment for both safety and privacy reasons. Does Sen. Cruz oppose those?

No. Child pornography is a disgusting, immoral, breach of basic decency. What Citizens United did in 2008 – create a documentary which criticized Hillary Clinton – is not the same as child pornography. If Senator Schumer and Representative Deutsch believe that criticism of Hillary Clinton is equivalent to filming the sexual violation of a child…there actually are not words to describe how horrifying that worldview is.

A third balancing test for the First Amendment should be a political system that has an equality of speech, which is why campaign spending limits are so important.

“Equality of speech” is a new balancing test, one that has never been used before in America. For good reason. What does equality of speech mean? Does it mean that every citizen has a right to be published in the pages of The New York Times? Does it mean anyone who wants to run for political office must be included in every political debate, regardless of political party or polling numbers? Does it mean that candidates should be limited to the same number of volunteers, so that one candidate can’t gain an advantage handing out flyers? All it seems to mean, in the context of this amendment, is that certain Americans should be prohibited from spending money expressing their opinion – because they have too much money.

The constitutional amendment we propose will not infringe on citizens’ First Amendment rights;

The proposed amendment makes an exception for the media. It says, “Nothing in this article shall be construed to grant Congress the power to abridge the freedom of the press.” Why does it make an exception for just that particular part of the first amendment? Because it necessarily infringes on the rest of the First Amendment and the new amendment’s supporters wanted to make it clear that the portion of the First Amendment they still like remains unaffected. Sorry, if your church is a § 501(c)(3) and discusses political issues though – the amendment would let Congress ban that.

[R]ather, it will restore the constitutional legitimacy to laws that set reasonable limits on spending in our elections.

It would be unwise to allow Koch Industries to decide on a “reasonable” level of pollution. Should the 535 politicians and campaigners in the House and Senate be allowed to decide what is a “reasonable” level of spending and, therefore, a “reasonable” amount of speech? It is easy to see why incumbent politicians might want to limit the amount of ads run against them, but doing so is hardly an argument for “constitutional legitimacy.”

If anything, such an amendment should be seen as a bulwark for the First Amendment, which seeks balance among the cacophony of voices that exist in a free society. If Sen. Cruz believes so strongly in free speech, he should be concerned about billionaires from both ends of the political spectrum drowning out the voices of average Americans.

The notion that banning certain speech in order to make other speech “more equal” is the ultimate perversion of the First Amendment. Oprah Winfrey speaks “more loudly” with her national television audience and billion dollar media empire. Should we prohibit Ms. Winfrey from voicing her opinions about politics? Congress should not be able decide what speech is “too loud” or “too influential.”

Because it is not with the same dearness that we hold the right to get up on a soapbox and make a speech, or to write for a brochure or a newspaper, as we do to put the 11,427th negative ad on the air or to make sure that all the ad space is bought so your opponent can’t get on the air.

And this is exactly why Congress cannot be in the “reasonable” speech business. Of course incumbent politicians want to prohibit negative ads – they are making the case to voters that incumbent politicians have done a bad job! Congress will necessarily divide the political speech world into speech they like (soapboxes and newspapers) and speech they don’t (ads that make Congress look bad). This also begs the question, which ad is too much speech? Is the first negative ad? The 1,000th? Or is it the 11,427th? Once again, is it really a good idea to let members of Congress decide how many ads their opponents can run against them?

With billions of dollars cascading into the system and distorting our politics, this false equivalency — likening the free speech of an individual to the campaign spending of a multibillion-dollar corporation — is dangerous and insulting to the American voter.

“Billions of dollars” don’t vote. The money in politics, whether from individuals (still by far the primary source of funding), corporations, or any source, is used to advocate for a candidate’s positions and message. Then, voters decide if that message is worthy of their vote. There are untold examples of candidates and campaigns that heavily outspent their opponent and lost. Indeed, Rep. Deutsch probably still has Eric Cantor’s phone number, if he wants to check.

Indeed, Americans’ free speech rights flourished throughout the 20th century alongside numerous laws aimed at shielding government from the influence of well-funded special interests. Sen. Cruz must know that there was no book burning, no voter intimidation or disenfranchisement caused by these campaign finance restrictions in the period before Citizens United.

Again, the facts of the case in Citizens United concerned the government’s desire to ban a movie. Perhaps banning movies is a “reasonable” restriction, but banning books is outlandish hyperbole?

These laws simply tried to protect the voices of average citizens from being shoved to the margins by the overwhelming power of moneyed interests to broadcast their message, which is stronger than ever. And now Citizens United has opened the floodgates to billions of dollars coming into the system undisclosed, unregulated and unanswered.

It is simply factually inaccurate to claim that there are billions of “undisclosed, unregulated and unanswered” political donations. The vast majority of political donations are disclosed – indeed, we know that 95% of political spenders in 2012 disclosed their donors. All political activity is subject to untold regulations from the IRS and FEC, which, as recent scandals have shown, are incapable of applying these regulations in a non-partisan manner. And, as is appropriate in a free society, every political ad can be answered by the media with honest reporting, by opposition candidates with their own beliefs, and by other citizens, who raise their own funds and use the innumerable communication platforms available today to get their message out.

Today, in terms of the ability to influence officeholders, the scales are tilted heavily in favor of corporations over voters, and wealthy individuals over middle-class families. Giving corporations and a few hundred individuals — whether it’s Sheldon Adelson or George Soros — the right to buy unlimited influence in our elections undermines our entire system of elected representation and self-government

This amendment doesn’t concern corporations or wealthy interests’ ability to influence office holders. This amendment is about influencing voters. Congress is afraid that “Sheldon Adelson or George Soros” might run an ad that changes voters’ minds, and that voters might decide that current officeholders are no longer right for the job. That doesn’t “undermine” elected representation – that is elected representation.

[A]nd could force elected officials to spend more time courting donors and avoiding corporate attack ads than listening to the needs of their constituents.

If elected officials truly wanted to spend less time fundraising, they would advocate for eliminating contribution limits. Then, they could spend all of that saved fundraising time listening to the needs of constituents.

It is clear that, throughout history, the application of the First Amendment has always required a balancing test, and there is no more important balance to be achieved than the noble goal of making sure our democracy works in an equal and fair way. That is what our amendment would do — it would restore some semblance of the principle of one person, one vote, and help us move toward the level of equality that the Founding Fathers sought in our political system.

As Chief Justice Roberts observed in FEC v. Wisconsin Right to Life, we all too often forget to mention the actual language of the First Amendment: “Congress shall make no law … abridging the freedom of speech, or of the press.”

Our Founding Fathers may not have been very familiar with ensuring that democracy is “equal” or “fair” – but they certainly knew that Congress needed to stay out of the business of policing thought, speech, and publication.