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 as it applies to political speech rights. Here are four of the key flaws with this misguided attempt to amend the First Amendment:
1) The Udall Amendment, formally known as S.J. Res. 19, is unclear about who regulates what.
The original version of S.J. Res 19 clearly gave states power over state elections, and Congress power over federal elections. This restriction was removed by the Senate Judiciary Committee, and the amendment now reads: “Congress and the States may regulate and set reasonable limits on the raising and spending of money by candidates and others to influence elections.”
Not only does the language on its face not restrict states to regulating state elections and Congress to regulating federal elections, but the fact that such a restriction was stripped from the bill would, as a general matter of statutory interpretation, mean the original restriction is not there. Potentially, states could raise Tenth Amendment arguments to void any federal regulation of state candidates, and the federal government could claim supremacy to void any state regulation of federal candidates.
However, since this is a constitutional amendment, such arguments, based on other, prior provisions of the Constitution, could be swept aside. At a minimum, this potential legal battle is a distinct possibility that would require some fancy footwork by the courts to avoid.
2) The Udall amendment’s inclusion of language granting Congress and the states the power to regulate the spending of money to influence elections by “artificial entities created by law” could permit government regulation of speech in churches.
Many, if not most, churches are incorporated, so leaving aside the question of what “artificial entities created by law” means, as mentioned in the Udall amendment, there could be a serious issue caused by this language. Any church body that can sue or be sued in its own name, however, could easily qualify as an “artificial entity created by law.”
Whether this would override the free exercise clause is a question for the courts.
3) The Amendment is unclear about what the word “reasonable” means.
The insertion of “reasonable” into the text of S.J. Res 19 by the Senate Judiciary Committee does nothing to limit the scope of the proposed amendment. It is entirely precatory.
Although it seems contrary to the drafter’s intent, it remains true that absent the express authorization to ban corporate and certain other contributions included in Section 2, a court could in theory hold that, for example, an independent expenditure ban on corporations was “unreasonable” (i.e. it could still reach the result of Citizens United). Presumably, a Court could declare that the only “reasonable” limits are those approved by the Buckley line of cases.
The second clause, however, which lacks “reasonable” language, suggests that a complete ban on spending by some entities is per se reasonable. Who really knows what will happen?
The amendment gives an interpreting court that wants to defend free speech an out against some regulations passed by Congress or the states. But, like the first two provisions, it demonstrates the utter lack of seriousness of the drafters that the amendment’s effects are so unclear.
4) The Udall amendment appears to authorize content-based restrictions on speech.
Under the proposed amendment, Congress may enact legislation “To advance … political equality.” Almost by definition, this suggests that content-based restrictions would be acceptable. It is true that a Court might determine that a content-based restriction based on non-content neutral law would be “unreasonable,” or even hold that the amendment was enacted against a well-established background rule, and there is no evidence of attempting to change that rule. But that is all speculative.
The extensive uncertainty surrounding the effects of S.J. Res 19 is one of the biggest causes for concern with the proposal. Once passed, Congress will not be able to control how these questions are resolved. These are the dangers of messing with the First Amendment, especially in such an irresponsible way.