First Amendment

Should First Amendment be revised to allow limits on campaign spending?

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A proposed constitutional amendment to reverse the U.S. Supreme Court’s campaign-spending decisions is getting some pushback from conservatives and editorial writers.

The amendment would give Congress and state lawmakers the authority to regulate campaign spending, overturning Citizens United and Buckley v. Valeo. Introduced by Sen. Tom Udall, D-N.M., it has 43 co-sponsors. This press release has more information.

The Senate version of the amendment allows lawmakers to regulate “the raising and spending of money and in-kind equivalents” with respect to elections. It also provides that, “nothing in this article shall be construed to grant Congress the power to abridge the freedom of the press.”

Among those who oppose the amendment are Chapman University law professor Ronald Rotunda, writing for Justia’s Verdict blog, and U.S. Sen. Ted Cruz, R-Texas, writing for the Wall Street Journal (sub. req.). They argue the proposed amendment has a broad reach.

“Speech is more than just standing on a soap box yelling on a street corner,” Cruz writes. “If you can prohibit spending money, you can prohibit virtually any form of effective speech.”

Drawing on government arguments in the Citizens United case, Rotunda says the proposed amendment would authorize lawmakers to ban the kind of political films at issue in Citizens United and even political pamphlets. Cruz gives specific examples, saying the amendment could allow bans on expenditures for voter guides by interest groups, door-to-door get-out-the-vote efforts, and bloggers’ criticism of politicians.

Columnist Dana Milbank labels some of those scenarios as “hyperbole” and “hyperventilation,” but he opposes the constitutional amendment nonetheless. A better solution, he wrote for the Washington Post, is to make Citizens United a prominent issue in presidential elections, producing Democratic presidents whose Supreme Court appointees reverse the decisions.

Cruz has introduced two bills with the opposite goal of the proposed constitutional amendment. His SuperPAC Elimination Act would allow individuals to make unlimited direct contributions to candidates, eliminating the need for Super PACs, according to Slate and a press release. His Free All Speech Act would require that all restrictions on political speech that apply to individuals also apply to media corporations.

Updated on June 10 to include coverage of Cruz’s bills.

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