ACLU comes out in opposition to the Udall Amendment

[Nye Bevan]

Udall Amendment:

Section 1. 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 for election to, or for election to, Federal office; and

`(2) the amount of expenditures that may be made by, in support of, or in opposition to such candidates.

`Section 2. A State shall have power to regulate the raising and spending of money and in kind equivalents with respect to State elections, including through setting limits on--

`(1) the amount of contributions to candidates for nomination for election to, or for election to, State office; and

`(2) the amount of expenditures that may be made by, in support of, or in opposition to such candidates.

`Section 3. Congress shall have power to implement and enforce this article by appropriate legislation.'.

http://freespeechforpeople.org/node/465

ACLU letter opposing this amendment:

http://www.scribd.com/doc/227981894/6-3-14-Udall-Amendment-Letter-FINAL

As we have said in the past, this and similar constitutional amendments would “fundamentally ‘break’ the Constitution and endanger civil rights and civil liberties for generations.”

Were it to pass, the amendment would be the first time, save for the failed policies of Prohibition, that the Constitution has ever been amended to limit rights and freedoms.

Congress has had the wisdom to reject other rights-limiting amendments in the past, including the Federal Marriage Amendment, the School Prayer Amendment, the Victims’ Rights Amendment and, of course, the Flag Desecration Amendment, which many of the sponsors of this resolution opposed. It should likewise reject the Udall amendment.

......

To give just a few hypotheticals of what would be possible in a world where the Udall proposal is the 28th Amendment:

Congress would be allowed to restrict the publication of Secretary Hillary Clinton’s forthcoming memoir “Hard Choices” were she to run for office;

Congress could criminalize a blog on the Huffington Post by Gene Karpinski, president of the League of Conservation Voters, that accuses Sen. Marco Rubio (R-FL) of being a “climate change denier”;

....

A state election agency, run by a corrupt patronage appointee, could use state law to limit speech by anti-corruption groups supporting reform;

A local sheriff running for reelection and facing vociferous public criticism for draconian immigration policies and prisoner abuse could use state campaign finance laws to harass and prosecute his own detractors;

A district attorney running for reelection could selectively prosecute political opponents using state campaign finance restrictions; and

Congress could pass a law regulating this letter for noting that all 41 sponsors of this amendment, which the ACLU opposes, are Democrats (or independents who caucus with Democrats). Such examples are not only plausible, they are endless. Currently, we do not have to worry about viewpoint discrimination, selective enforcement and unreasonable regulations that unnecessarily stifle free speech without advancing a legitimate state interest because of the First Amendment, and these protections would not apply to speech covered by this proposed amendment. Tinkering with the First Amendment in this way opens the door to vague and overbroad laws, which both fail to address the problem that Congress wishes to solve and invariably pull in vast amounts of protected speech.

The whole ACLU letter makes a compelling case for why the First Amendment should not be gutted in this manner.

[Uncle Joe]

1. Kicked and recommended.

Thanks for the thread, Nye Bevan.

[Luminous Animal]

2. A much more practical solution would be public funding

free airtime, and a limited election season. All which the ACLU supports.

[Nye Bevan]

6. I'm not sure what you mean when you say the ACLU supports a "limited election season".

I certainly have never heard of them supporting such a proposal. And if by "limited election season" you mean that nobody is allowed to run an ad criticizing the President (or praising a possible presidential candidate) outside of a "limited election season" then I am certain that you are mistaken about the ACLU supporting such a proposal.

[Luminous Animal]

21. Limited by when public funds are released.

[Nye Bevan]

23. OK. But anyone could still decline public funds (as Obama did last time around)

in order to be able to spend unlimited amounts whenever they wanted to.

[frazzled]

19. Well if they support it, they're at odds with themselves

Because if they're so all fired sure that contributing unlimited amounts of money to candidates is a hallmark of "free speech," then public financing, which would preclude anyone from expressing their First Amendment rights to dump a lot of money into a campaign, would contradict that policy.

Or am I missing something here? To me, it's a self-contradictory position. Public funding limits money-cum-speech in the same way that campaign contribution limits do, in principle.

[Jim Lane]

24. Every public funding scheme I've heard of is optional.

In the U.S. presidential election, a candidate may choose to receive public funding, a condition of which is to agree to the spending limit, or may choose (as Obama did) to reject the public funding, in which event there's no limit on the total of private contributions that may be raised and spent.

[frazzled]

33. There used to be support for full mandatory public funding

but the Supreme Court rulings—on First Amendment grounds—have struck most of the state (Vermont, eg) and local laws down.

[joshcryer]

83. Citizens United is at odds with public campaigning.

So it's really a strange approach they're taking and I think they're taking it to extremes. An autobiography by a politician is not necessarily a revenue stream. It only becomes one if that person uses it to contribute to their own campaigns. Which is easy enough to vet out.

[madinmaryland]

3. It only needs to be one sentence...

"Corporations are not given the same rights as human beings and shall be regulated by a government of the people, by the people and for the people"

Edited to add: Corporations are "Charters" set up the government and shall be regulated by the government (of the people, by the people and for the people".

[Nye Bevan]

4. So a law banning corporations from publishing books that criticized election candidates

during election season, would be constitutional.

A law banning entities such as DemocraticUnderground LLC from criticizing election candidates would be constitutional.

Your proposal also guts the First Amendment considerably.

[merrily]

7. The issue should not be about corporations, but about money.

There's no more reason why David Koch or Sheldon Adelson should be able to buy a election or a politician than there is for GE (or a small corporation) to be able to buy an election or a poitician.

[Nye Bevan]

8. The First Amendment protects David Koch's ability to run whatever ads he wants to.

Which of course does not always translate to "buying an election". How much did Meg Whitman and Jerry Brown spend, and who won?

Note that even if Citizens United had gone the other way, David Koch (or any other individual) would still have the right to spend unlimited money on advertising to influence elections.

[merrily]

11. That is not an issue when you are talking about another Consitutional amendment.

The Supreme Court recently said that the First Amendment protects money as speech, much to the dismay of many people. However, when a Constitutional amendment to modify that Supreme Court decision is being proposed, arguing that one constitutional amendment would violate another Constitutional amendment just doesn't work.

[Nye Bevan]

12. Money is speech. You need money to get your message out.

Many incumbents in Congress would love it if it was constitutional to pass a law limiting to ridiculously small amounts what their challengers could spend in running against them. Fortunately, such a law would be thrown out today as unconstitutional. But this would not be the case under a "money is not speech" amendment.

[merrily]

13. Money is not protected speech if a Constitutional amendment says it isn't.

Many incumbents in Congress would love it if it was constitutional to pass a law limiting to ridiculously small amounts what their challengers could spend in running against them.

Not necessarily. Because the same limits would apply to everyone. Or, you could even make it so an incumbent gets a monetary handicap. As I said, the amendment would have to be very carefully worded.

But who said anything about "ridiculously small" amounts. Only you. LOL. Nice trick.

Fortunately, such a law would be thrown out today as unconstitutional.

You mean "Unfortunately." And, yes, "today" it would be thrown out, because "today" is after the Citizens' United decision. However, before the Citizens United decision, this Republic went for a couple of centuries under the assumption that speech was speech and money was only money. Also the assumption that corporations are corporations and people are people. And it did just fine under those assumptions.

[Nye Bevan]

17. A "money is not speech" amendment would indeed make "ridiculously small" limits constitutional.

Because after all, a "ridiculously small" amount of money is still money.

Or you are proposing to hard-code specific dollar amounts into the amendment? Something like "money is not speech, but Congress shall pass no law imposing spending limits below ten million dollars"?

[merrily]

20. Leveling the playing field is key. That would be hard enough to work out.

If you can have "only" $5 billion to spend and I have "only" $5 billion to spend, then the playing field is going to be a lot more level than if I can spend only $50 bucks and you can spend $50 billion. And, as I said, refinements can be made for other inequities, though I think you never get rid of the incumbent advantage, no matter what you do.

It's not only higher name recognition, which money can adjust for somewhat, but not eliminate. It's also the things done for individuals and districts or states. No challenger could hope to match, for example, what Kennedy did for his constitutents or for the state as a whole.

But, as I said, in reality, all this is moot anyway. It should happen, but it's not going to happen, not even Udall's amendment--and that does nothing anyway.

[Orrex]

31. There is no reason why a corporate entity should be allowed to express a political opinion.

A corporation is a fictional entity. Restricting its alleged rights is no more unconstitutional than restricting the rights of Mickey Mouse or Becky Thatcher.

The legal fiction of a corporation was created by people, and people are under no obligation to afford such a legal any more rights than the people wish it to have.

Corporations could be legally barred from endorsing Republican candidates or from using the word "money." They have no rights other than those explicitly granted to them. There is nothing at all wrong with this, and there is no inherent violation of the Constitution in doing so.


We've had this discussion before, and I regret to say that your position on the matter implictly grants greater protections to legal fictions than to actual human beings.

[Nye Bevan]

34. Does this also apply to corporate entities such as the New York Times Corp?

I understand that you think that it should be constitutional to ban corporations from publishing books that express political opinions. But do you exempt corporations that happen to own newspapers, such as the New York Times Corp, Rupert Murdoch's News Corp and Jeff Bezos' Washington Post? Should a law banning such corporate entities from expressing political opinions (via their newspapers or their newspapers' websites) be constitutional?

[Orrex]

42. Freedom of the press is guaranteed in the 1st Amendment, is it not?

Unless you assert that all corporations qualify as "the press," then I don't see how the comparison is relevant.

The press itself is free, so the publication The New York Times enjoys freedoms that The New York Times Company should not. The publication is not the company, nor vice versa.

Should a law banning such corporate entities from expressing political opinions (via their newspapers or their newspapers' websites) be constitutional?

First I must require you to explain precisely how a legal fiction can express an actual opinion.

Instead, I submit that the legal fiction can't actually have or express an opinion but instead can only be used to diseminate those opinions chosen by its owners. Let the owners be on the record expressing those opinions for themselves, whether it's Murdoch or Bezos. The legal fiction of a corporation is an entity separate from its owners, so eliminating the purported rights of the legal fiction does not in any way restrict the rights of its owners.

Restricting the rights of The New York Times Company does not restrict the press, nor does it limit the ability of the editorial staff to express its opinions in the pages of The New York Times.

[Nye Bevan]

43. "Precisely how can a legal fiction express a political opinion"

Newspaper endorsements.

Or are you OK with insisting that newspaper endorsements be signed by "natural persons"?

[Orrex]

44. The entity should not be able to express an opinion

"Precisely how can a legal fiction express a political opinion"

My question should have been more properly phrased as "How can a legal fiction have a political opinion or any opinion?"

Or are you OK with insisting that newspaper endorsements be signed by "natural persons"?

Sure. A person can speak on his or her own behalf.

[Nye Bevan]

46. So you would make a long, long tradition illegal.

Here is the NY Times (unsigned) endorsement of Lincoln in 1860:

http://graphics8.nytimes.com/packages/pdf/opinion/timeline/lincoln-1860.pdf

Would you also ban entities such as unions and Planned Parenthood from expressing political opinions on their own behalf?

[Orrex]

47. You mean the long, long tradition of corporate personhood? Absolutely.

Would you also ban entities such as unions and Planned Parenthood from expressing political opinions on their own behalf?

It would be inconsistent for me to wish otherwise. And if it means ending the conceit that corporations are entitled to the same rights as "natural persons," then it would be a small price to pay.

[Nye Bevan]

49. OK. I think you and I have an unbridgeable gap on the issue of freedom of speech.

You would allow books expressing political opinions to be banned, you would make unsigned newspaper endorsements illegal, and you would ban unions and groups such as Planned Parenthood from expressing political views. We are not going to have a meeting of the minds here.

[Orrex]

50. Is the union a natural person?

I made no assertion about books, and in fact I would assert that the book qualifies as "the press," so it's covered by the 1st. Unless you're claiming that the book is a corporation?

You haven't yet answered my question: how can a legal fiction have an opinion?

[merrily]

55. Are you implying that a book or an an editorial in a newspaper can't be distinguished from

General Electric donating millions to the RNC or the DNC?

[Nye Bevan]

56. It's already illegal for corporations to donate to the RNC and the DNC,

and I have no problem with that law. I do not view such contributions as "speech".

[merrily]

57. Okay. Are you implying that publishing book or an editorial can't be distinguished from

General Electric donating to whomever or buying political ads? Or whatever behavior fits.

[Nye Bevan]

58. I think that anyone, any time, should be allowed to publish a book or write an editorial,

and they should be allowed to say anything they wish about election candidates. And that includes corporations, unions, and entities such as Planned Parenthood.

I have no problem with restrictions on donations to candidates and campaigns. For example, I do not have an issue with the current law that prohibits corporations from making contributions to election candidates.

[merrily]

59. And I see no reason why for profit corporations that do not publish books or editorial

(or make political movies) in the ordinary course of their respective businesses should not be regulated in that regard.

Every stockholder and every employee, officer and director has the right of free speech, just as I do. There is no reason to give them an additional free speech right because they've chosen to do business in a form that limits their liability.

A corporation does not speak or have opinions. And Scalia is full of shit that the Framers thought corporations were people and should have free speech rights.

[Nye Bevan]

60. So you are proposing that some, but not all, corporations should have a free speech right?

Since Rupert Murdoch's News Corp, for example, publishes editorial opinions "in the ordinary course of its business", it should have a constitutional right of free speech that other corporations should not have?

[merrily]

62. No. My post said what it meant. Why don't try dealing it with it the way it was actually

worded, as opposed to spinning it before replying to it?

[merrily]

9. I think any Constitutional amendment would have to be very carefully worded.

But, Udall's is crap, IMO. For one thing, it doesn't require any limits at all on spending, it only allows Congress to set limits for federal elections and state legislatures to do the same for state elections. And, as I posted to Nye, this should not be about corporations vs. individuals. It's no better for Adelson or Koch to, in effect, buy a politician or an election that it is for a corporation to do the same.

[gratuitous]

22. The amendment isn't meant to be the solution

It's meant to overturn the Supreme Court decision that basically said that Congress didn't have any power to regulate campaign spending. The actual regulations enacted would be up to Congress, and the Supreme Court couldn't overturn them on spurious "free speech" grounds, though there might be other grounds this Supreme Court might find lurking in the penumbra of the original intent, which houses a surprising amount of judicial discretion not generally available to us foolish mortals.

[merrily]

27. It's meant to leave everything to the sole discretion of Congress and I don't think that is

Last edited Wed Jun 4, 2014, 04:00 PM - Edit history (1)

a great idea. As long as the people are being asked to amend the Constitution--if indeed we ever get to that point--why shouldn't the people weigh in, instead of just leaving everything to Congress?

[gratuitous]

51. The Constitution isn't meant to be the U.S. Code

For example, the Eighth Amendment to the Constitution has some really fuzzy language about cruel and unusual punishment. What that is or is not is left to Congress to decide and legislate. If someone doesn't like the law Congress has enacted, they can ask the courts to decide if the punishment is too cruel or unusual to pass constitutional muster.

In this case, the Supreme Court has basically ruled that Congress can't pass any laws restricting campaign finances and contributions, because it's against the First Amendment proscription against laws regulating speech. The remedy has to be a constitutional amendment that will allow Congress to legislate restrictions on campaign financing and contributions (since any subsequent law would be subject to the same Court ruling that it would be an unconstitutional abridgment of the freedom to speak). We're kind of stuck with the American system, and I submit that amending the Constitution with some definite law rather than articulating a principle would lead to some very unwelcome results.

[merrily]

52. Who said the Constitution was meant to be the US Code?

The remedy has to be a constitutional amendment that will allow Congress to legislate restrictions on campaign financing

No, it doesn't have to be that. It has to be an amendment that overrules Citizens, but it does not have to leave everything else up to the sole discretion of the bought and paid for Congress. They are part of the problem.

The "donors" are one side of the corruption problem; the takers of the donations are the other side. I would not leave something this important to either the corrupters or the eager to be corrupted.

If you have a different opinion, fine. But, let's not pretend that some requirement dictates that fixing a corrupt system has to leave it all up to the sole and unfettered discretion Congress. It doesn't.

[gratuitous]

54. Well, if you can come up with a law-writing mechanism outside Congress

Then by all means, be my guest. As it is, the system we have in place for writing federal law is Congress. I don't think that's a reality that can be ignored just because someone wants it to be otherwise.

[merrily]

63. Huh? It's not a choice between leaving something to the unfettered, sole discretion of

Congress of Congress or having another law writing mechanism.

[gratuitous]

67. Then I don't get your point

Congress writes our laws; that's their constitutional function. You seem to be saying that you don't want them doing that, but there isn't another mechanism to do that, but you can't or won't name an alternative to that.

Post again when you figure out what you're trying to say. Because right now, it appears you've been snacking with Maureen Dowd.

[merrily]

69. Your penchant for leaping to bizarre conclusions is not my fault.

Neither is your rudeness.

[Jim Lane]

25. You mischaracterize Udall's amendment. It would address all spending.

You state that "this should not be about corporations vs. individuals." I agree. That's one flaw in the "corporations are not persons" amendments -- they don't deal with the McCutcheon decision that allowed unlimited spending by individuals.

Udall's amendment recognizes that spending is speech but is also conduct, and authorizes regulation of spending regardless of the source.

Another advantage of Udall's approach is that it doesn't allow arbitrary retaliation against corporations that displease some government official, which the "corporations are not persons" amendments would allow (by taking corporations out of the protection of the Due Process Clause).

You're right that it merely allows rather than imposing limits. How, exactly, would you word a Constitutional amendment to impose limits? A reasonable limit would have to take account of the number of people in the electorate, the current costs of various campaign functions, the interplay with any public funding scheme, the difference between candidate expenditures and genuinely independent expenditures (along with the gray area of sorta-coordinated expenditures), and probably other factors that don't occur to me right now. A sensible statute would be very detailed (probably at least as long as the entire Constitution) and subject to frequent revision. You just can't do that via a nearly-impossible-to-change Constitutional amendment.

The real difficulty with Udall's amendment is the one Nye identified -- that a legislature could abuse it by setting unreasonably low limits, giving a major advantage to incumbents who generally enjoy superior name recognition. I think I saw one version that authorized "reasonable" regulation, which would amount to dumping the whole problem on the courts. That's not a great solution but I don't know a better one.

[merrily]

28. How, specifically, did I mischaracterize the amendment? You agreed with what I said.

Mischaracterizing implies that I either got something wrong or that I lied about it. Yet, I did not see you correct or refute any characterization that I made about the amendment. So, can you please be more specific? What exactly did I mischaracterize?

The real difficulty with Udall's amendment is the one Nye identified -- that a legislature could abuse it by setting unreasonably low limits, giving a major advantage to incumbents who generally enjoy superior name recognition.

I addressed that in another post, but I will repeat my points. The adequacy amount can be addressed in some way. (Moreover, that was a danger before Citizens, too.)

First, that is not a difficulty with Udall's amendment, but with our system, both before and after Citizens.

However, the incumbency advantage exists, not only as to name recognition, but in what the incumbent has had an opportunity to do for his or her individual constituents and for the district (or state) as a whole. It's always existed. It probably always will. Why do we put the entire burden on this amendment to fix it?

Leveling the playing field as to money, at least substantially more than it is now, is in itself a noble goal, IMO, even if it does not correct every other problem that existed both before and after Citizens. And the incumbency advantage is one of those problems.

Moreover, incumbency is not always an advantage. Having a lousy record to hold against someone is also an advantage, if the incumbent has not been doing his or her job. (If they have been doing their job, maybe incumbency, or more accurately, experience and good performance, should be an advantage.)

And lack of a record that can held against someone can be an advantage too. (Daschle has made that very point as to him own run for the President in contrast to Obama's run.) Anyway, there's no guaranty the big money will go to the challenger as opposed to the incumbent. That is not what happens most often.

But, regardless of whether incumbents have an advantage or not, that is not a problem that Citizens either created or solved. So, why expect an amendment that counters Citizens to solve it? And making sure the amount is not "unreasonably low," whatever that means, is not all that difficult to address. It's just that Udall's amendment doesn't address it. Then again, my posts on this thread support an amendment, but not Udall's amendment.

[Jim Lane]

36. Sorry if I wasn't clear.

With regard to Udall's amendment, you wrote in #9:

And, as I posted to Nye, this should not be about corporations vs. individuals. It's no better for Adelson or Koch to, in effect, buy a politician or an election that it is for a corporation to do the same.

That's a valid criticism of the proposed amendments that would address Citizens United by stating that corporations are not persons for purposes of the Bill of Rights, because such an amendment would leave the Adelsons and Kochs unaffected. I interpreted your post as applying the same criticism to Udall's amendment, but that amendment meets the objection by not distinguishing between spending by corporations and natural persons. ("Natural person" is a term sometimes used in the law to refer to a human being, as distinct from a corporation or other legal entity that is treated as a person for some purposes although not for all.) If you didn't mean the quoted excerpt to apply to the amendment quoted in the OP, then I withdraw my comment.

As for the rest of your post, my point isn't that a spending limit would fail to solve the problem of incumbency advantage. My point is that an amendment authorizing spending limits would give incumbents in many circumstances considerably expanded scope for unfairly hindering challengers. Incumbents who thought they might be in the kind of position you describe -- unpopular and/or able to raise much more cash than their opponent -- would have some ability to manipulate the spending limits accordingly.

That a particular proposal would be open to abuse in some circumstances isn't a reason for automatically rejecting it, but one does have to consider how things will play out in various cases. That's particularly true of a Constitutional amendment because of the difficulty of fixing it if unforeseen problems develop.

[merrily]

61. Oh, you were very clear. You were very wrong, but very clear.

Last edited Wed Jun 4, 2014, 06:29 PM - Edit history (2)

My Post #9 was a reply to Post #3. Did you read Post #3? It does suggest a very different amendment than the one Udall proposed. So, why you accused me of mischaracterizing Udall's amendment is still a mystery. So is why you accused me of mischaracterizing anything at all.

As I posted earlier, "mischaracterize" can carry a connotation of dishonesty (as opposed to, say, "misunderstood" or "misapprehended&quot . Your apologizing if you were unclear and if my post had nothing to do with Udall's proposed amendment seems like the typical faux apology.

As for the rest of your post, my point isn't that a spending limit would fail to solve the problem of incumbency advantage. My point is that an amendment authorizing spending limits would give incumbents in many circumstances considerably expanded scope for unfairly hindering challengers.

? Did I propose any spending limit? I thought I proposed a level playing field, without defining "level playing field" in any specific way. I did say that Udall's amendment does not set limits, but only allows Congress so to do, if it wishes. But that simply is a correct description of his proposal. It has no teeth of any kind, was my point.

And yes, you certainly seemed to have difficulty with the fact that a proposed amendment might not solve the problem of an incumbency advantage. Still seem to, in fact.

Again, I proposed no particular spending limit. (The only number I gave on this thread, even on a highly hypothetical basis and not as a suggested limit was $5 billion.) Additionally, I thought my Reply 28 made some decent points about the incumbency issue. Finally, I see no reason at all to assume that an amendment that simply levels the playing field, as I have suggested, would give incumbents more power to hinder challengers than they already have.

[Jim Lane]

68. If you insist on my spelling out why I misunderstood you....

The paragraph in your post from which I quoted had this structure:

But, Udall's is crap, IMO. For one thing, .... And, ....

That gave me the impression that you were citing two different objections to the Udall amendment. From your latest response I gather that, instead, you made a mid-paragraph pivot to a different proposed amendment, which I missed.

Frankly, I think you're bristling a little more than our minor misunderstanding warrants. We're both writing posts on a message board. The generally accepted standard is that words here aren't necessarily as carefully reviewed and polished as if a lawyer were writing a brief or a legislator were writing a statute.

As for "mischaracterize", I think "characterize" means to describe something and "mischaracterize" means to describe it inaccurately -- which can reflect dishonesty but can also reflect a good-faith error. I thought that you hadn't pored over the text in the OP closely enough to notice that Udall's amendment was different from the amendment much more commonly offered, about corporate personhood. I'd be going pretty far out on a limb to accuse you of dishonesty when the exact text is right there and you'd have nothing to gain by lying, even if your morals were at Cheneyesque levels, which I have no reason to believe they are.

On incumbency advantage, you said that I "certainly seemed to have difficulty with the fact that a proposed amendment might not solve the problem of an incumbency advantage." You impute to me a view that I expressly disclaimed. Here's what I actually wrote, albeit with some boldfacing added: "My point is that an amendment authorizing spending limits would give incumbents in many circumstances considerably expanded scope for unfairly hindering challengers." So it's not that a spending limit would fail to solve a current problem but that it might exacerbate the problem.

You conclude: "I see no reason at all to assume that an amendment that simply levels the playing field, as I have suggested, would give incumbents more power to hinder challengers than they already have." Here I disagree because I do see such a reason. The reason is that, in the most common situation, the incumbent has an advantage in name recognition. (You're right that it's not universally an advantage, but it is more often than not.) If the playing field as to spending is leveled, then the overall playing field will become less level, because the challenger is deprived of one method of overcoming the incumbent's advantage.

I agree with you that Udall's amendment would merely authorize a spending limit rather than impose one. For the reasons I stated in #25 (next-to-last paragraph), I think that's inevitable. I can't conceive of how an amendment to the U.S. Constitution could impose a sensible spending limit for the myriad of federal, state, and local elections.

[merrily]

70. Actually, I didn't insist on your spelling out anything. Didn't even ask, let alone insist.

[Gravitycollapse]

18. If you think any just law could be one sentence, please don't ever become a law maker.

[merrily]

5. Udall's proposal doesn't go far enough, by a long shot.

We have two strong values competing with each other. One is the integrity of our entire system vs. the corruption of our entire system. The other is the First Amendment. Fat lot of good my ability to speak out about government does me, if I have no money and elections, politicians and media coverage are all for sale.

[Nye Bevan]

10. What the First Amendment, and the Citizens United decision, allows you to do,

is to pool resources with like-minded people to enable you to collectively speak in opposition to a billionaire. One example is that you can join a union which then (thanks to the Citizens United decision) has the First Amendment right to run issue ads to influence elections.

[Blue_Tires]

14. So in a supposed democracy, a billionaire is worth tens of thousands of regular people?

Whatever happened to one man, one vote?

The flipside of "money=speech" which the ACLU is too blind to notice is obviously "no money=no speech"...

[merrily]

16. Mo money, no mo problems--for the rich.

[ProSense]

30. Exactly. It's a

So in a supposed democracy, a billionaire is worth tens of thousands of regular people?

Whatever happened to one man, one vote?

The flipside of "money=speech" which the ACLU is too blind to notice is obviously "no money=no speech"...

a bogus arguement that tries to make numerous false equivalencies using an interpretation of the First Amendment to support Citizens United and oppose any law that would repeal it. Think about it, before Citizen United, there would have been no problem with Hillary's book or a post by the LCV in a blog.

This was a response from Laurence Lessig to Greenwald, who made a case for Citizen's United (http://www.democraticunderground.com/100293141)

<...>

Yet this is the most confused part of the commentary (and reaction) of most to this kind of regulation. If the government's reason for silencing corporations is that they don't like what corporations would say -- if it thinks, for example, that it would be too Republican, or too pro-business -- then that's got to be a terrible reason for the regulation, and we all ought to support a decision that strikes a law so inspired.

That, however, is not the only, or the best, justification behind the regulations at issue in Citizens United. Those rules not about suppressing a point of view. They're about avoiding a kind of dependency that undermines trust in our government. The concentrated, and tacitly, coordinated efforts by large and powerful economic entities -- made large and powerful in part because of the gift of immunity given by the state -- could certainly help lead many to believe "money is buying results" in Congress. Avoiding that belief -- just like avoiding the belief that money bought results on the Supreme Court -- has got to be an important and valid interest of the state.

If the Court really means to say that entities that fund or create other entities can't limit the power of those entities to speak -- so the government can't stop doctors from talking about abortion, or the IRS can't stop non-profits from talking about politics -- then we really have crossed a Bladerunner line. For that conclusion really does mean that these entities were "created with certain unalienable rights," even though they were created by a pretty pathetic creator -- the state.

My point is not that the state's power to condition should be unlimited. The point instead is that it's not so simple, or absolute, as Greenwald would have it. And given the true complexity of these evolving and complicated doctrines, it is certainly fair to be critical in the extreme of this decision by the Court, favoring speech that most believe it naturally likes (unlike abortion-speak), in a decision that ignores the judgment of Congress about the conditions under which the integrity of that body, or any election, proceeds.

http://www.huffingtonpost.com/lawrence-lessig/a-principled-and-pure-fir_b_439082.html

[liberal_at_heart]

45. +1000000

[merrily]

15. Again, a Constitutional amendment would change whatever it changes.

In the context of discussing an amendment, it's silly to keep repeating what you think the law is now.

Actually, in reality the entire discussion is only hypothetical. The bought and paid for Congress is never going to pass any Amendment that puts any real restrictions on the ability of Congress to be bought and paid for.

[randys1]

26. ACLU may be right, usually are, problem is we are done as a nation if we dont take drastic

steps and right now.

Life itself is in danger due to horrific human beings like the Koch Bros, who are not just preventing green energy thus causing more harm to climate but they buy all the politicians and what little time we have left to live is gonna be miserable.

Something must be done and NOW

[questionseverything]

29. how about this idea

once a candidate gathers enough signatures to be on the ballot

if candidate a spends 50 grand on airtime candidate b gets 1/2 that air time for free

candidate a is not restricted in anyway but candidate b still has a voice

that and enforcing the "issue" laws about groups not coordinating with candidates would go a long way

of course after that problem we humans must actually count/report the votes instead of letting corporations do it for us

[Brewinblue]

32. There is a much better way

Add an amendment with two clarifying definitions:

1. People and persons refer only to "natural born" persons; and
2. Speech refers to the spoken and written word, or other forms of expression, and not to money.

[Nye Bevan]

35. I think you just took away the freedom of the press.

Or do you exempt "non-natural" entities such as Rupert Murdoch's News Corp and Jeff Bezos' Washington Post?

[Tuesday Afternoon]

38. wouldn't that come under "written word" ... ?

[Nye Bevan]

40. So no limit on corporations spending billions mailing ads to everyone in the country?

And does paid internet advertising count as the "written word" or does it have to be on dead trees? If the latter, should it be constitutional to ban the e-book version of a book that criticizes a presidential candidate, but not the version on paper?

[Brewinblue]

71. If corporations aren't persons,

Congress can regulate their "speech". The Press, of course, cannot be so regulated in its role as the Press per the 1st Amendment.

All I'm saying is that the Constitution should be amended to unequivocally say what we all know it was meant to say: Corps ain't peeps, and cash ain't speech.

[Jim Lane]

72. Can their property be taken without due process?

The Due Process Clause of the Constitution is a hugely important protection against abuse of government power -- but it explicitly protects persons.

Here's the exact wording. It occurs twice, in the Fifth Amendment to restrain the federal government and in the Fourteenth Amendment to restrain the states (and their political subdivisions):

Fifth Amendment: &quot N)or shall any person . . . be deprived of life, liberty, or property, without due process of law . . . .
Fourteenth Amendment: &quot N)or shall any State deprive any person of life, liberty, or property, without due process of law . . . .

Because both iterations of the Due Process Clause use the word "person", an amendment under which corporations could never be considered persons would have the practical effect of taking them out of the scope of this protection. Are you cool with that? If so, what do you think DU's lawyers should do when President Cruz issues an executive order confiscating all the assets of the corporation we all know and love, Democratic Underground LLC? Under present law, of course, it would be illegal as a violation of the Fifth Amendment. After the proposed amendment, I don't see what the objection would be.

An outright confiscation is the starkest example, but there are many, many other horrible things that a future right-wing President (or the current right-wing nutjobs running Kansas or North Carolina) could do if unconstrained by the Due Process Clause vis-a-vis corporations.

[Brewinblue]

73. The shareholders still have due process

eom

[Jim Lane]

74. That interpretation would effectively undo the amendment

If an infringement of what are now the corporation's rights (because it's a person) would no longer be illegal on that basis, because the corporation would no longer be a person, but the infringement would be illegal because it adversely affected the shareholders -- then what government action that's now blocked by corporate personhood would become legal?

Let's take Citizens United, the spark for the current push to amend. Its basis is that the corporation is a person and that the corporation's right to free speech is protected by the First Amendment. The First Amendment also protects freedom of association. If the corporation were deemed to be not a person, then on your view any individual shareholder could say, "We choose to buy shares in this company, come together as shareholders, elect a Board of Directors to coordinate the corporation's political speech, and thus be more effective than we would be separately. To bar corporate campaigning deprives us of our due process rights." Thus, the amendment wouldn't affect the very decision it's targeted at.

Incidentally, the definition of "person" is very much involved here. The First Amendment was originally read to restrict only the federal government, because it says "Congress shall make no law...." It was applied to the states only in the 20th century, when the Supreme Court held that the Due Process Clause of the Fourteenth Amendment incorporated some or all of the Bill of Rights. As I pointed out, however, the Due Process Clause protects only persons.

[Brewinblue]

78. Remember, I proposed two definitions

< "We choose to buy shares in this company, come together as shareholders, elect a Board of Directors to coordinate the corporation's political speech, and thus be more effective than we would be separately. To bar corporate campaigning deprives us of our due process rights." >

Not an issue if speech is defined so as not to include money. Congress can regulate spending on political campaigns if money is not speech. And no one is stopping the shareholders from any freedom of speech, just the corporation which itself has no due process rights. Or so I propose.

[Jim Lane]

85. You've hit on the reason the corporate personhood amendment is pointless.

The real issue is that campaign spending, whether by a corporation or by an individual, is speech but is also conduct. The government should be able to impose reasonable regulations on the conduct.

If we get to that point -- either by a Constitutional amendment to establish that the First Amendment doesn't give unlimited protection to campaign spending, or, more realistically, by a change of one vote on the Supreme Court -- then the problem of Citizens United is disposed of (even though corporate personhood remains intact) and, as a bonus, the problem of McCutcheon is also disposed of.

Corporate personhood is a red herring.

[Brewinblue]

86. OK, I'll buy that.

But corporate personhood needs to go for so many other reasons.

[Brewinblue]

39. The press is already explicitly granted 1st Amendment freedom.

But that doesn't mean Newscorp is a person entitled to all the other protections under the constitution, though certainly it's employees are persons (except Rupert, of course). Corporate personhood is an artificial construct that slipped into the law over a century ago and it needs to be removed -- the founders almost certainly never intended for it to begin with.

[Nye Bevan]

41. So all the Kochs would have to do is start a "newspaper"

and mail it to millions of people, to evade being affected by a new amendment.

[Orrex]

48. They would have to *be* a newspaper

They are already free to express their own opinions on their own behalf.

[former9thward]

77. Corporations as we know them did not exist in the 1700s.

So we really don't know what the founders would have intended.

[Tuesday Afternoon]

37. interesting suggestion. Sounds simple.

[merrily]

64. Please see Replies 3 and 9.

[NYC Liberal]

53. This is a horrifically bad amendment.

Congress could pass a law limiting your total contributions to candidates to $10.

They could pass a law prohibiting you from spending money to put out a book or a movie supporting or opposing a candidate. They could ban you from setting up a website supporting or opposing a candidate.

After all, the amendment allows Congress to limit "the amount of expenditures" made in support of or opposition to candidate. Publishing a book, putting out a movie, and hosting a website all cost money and could be regulated under this amendment.

[tritsofme]

65. The purpose of this amendment is campaign "messaging", it is not a serious attempt at lawmaking.

It's really not meant to hold up to this sort of criticism, and that should be taken into consideration when evaluating it.

[merrily]

66. Is Udall calling it a proposed amendment or is he calling it campaign messaging?

Seems to me, if he's calling it the former, then that is the way to evaluate it. And if it is only campaign messaging masquerading as a proposed amendment, shame on him. Then, there is no reason to evaluate the alleged proposal at all, only to evaluate his sincerity and authenticity.

[MohRokTah]

75. Sorry, ACLU, I support the amendment and oppose you on it.

Their arguments do not alter my opinion on the amendment.

[bluestateguy]

76. The Udall Amendment is too vague and needs to be revised

I support the goals and the concept, but the language is too flexible and prone to abuse.

It's not the ACLU's job to carry water for our side, but rather, to defend the Bill of Rights as they see fit. And this time they are right.

[Agony]

79. extreme wealth and income inequality are the root cause of this problem

I would rather see us address economic inequality than muck around with the 1st amendment...

the obvious catch22 is how to effect change while extreme wealth has a death grip on political power...

Agony

[MFrohike]

80. Hahahahahaha

Wow, that is some disingenuous shit. A few thoughts:

1. The first section of this letter claims that sections 1 and 2 are repetitive and prone to abuse of discretion by a court. That is some smooth lawyering to make that claim. Section 1 gives Congress the power to regulate. Section 2 gives Congress the express power to limit fundraising. For the ACLU to argue that this is bad drafting is simply bullshit. The amendment is crafted to remove the possibility of a federal court returning to a Buckley/Citizens United regime by opining that the amendment didn't specifically grant Congress the power to limit fundraising. That argument is just breathtakingly dishonest.

2. The second section is pretty funny. They claim that federal law governing campaigns already exists, so it's really not necessary to pass an amendment. This completely glosses over the fact that federal law can be invalidated because 5 people feel like it. It's pretty dishonest to ignore the fact the amendment process is being used because of the court's decisions. Additionally, the mention of the difference between candidate advocacy and issue advocacy is hysterical. Karl Rove has been running commercials for months to get Thom Tillis elected in NC. They are indistinguishable from campaign commercials except that they lack the candidate's approval message at the end. It's telling they cite an ad they ran in 2004. It would far more problematic to cite ads from the last couple of years in a battleground state.

The parade of horribles they trot out in the bullet points are fairly amusing. If they trust the court's judgment so much on the first amendment, surely they think the court can find a way to reconcile it with the proposed 28th amendment?

3. The third section is less dishonest, but only a bit. The bit about billionaires buying news outlets to circumvent this amendment is hilarious. I guess they haven't heard of Rupert Murdoch or Jeff Bezos. Last I checked, they're busy buying outlets without it.

I will admit that the third section contains a problem. There is no express grant of power for the states to pass laws stemming from the amendment. The only grant is for Congress. It seems to read that Congress has the power to grant the states the right to regulate their own elections. Now, if that's the case, it would seem to interfere with the ACLU's assumption that the states would have the power to shut down newspapers. Further, they ignore the 9th amendment. Normally, it is ignored, but it would be necessary for the federal courts to take notice of it in conjunction with this amendment. The proposed amendment is pretty clearly targeted toward express advertising, but invoking the 9th amendment would help prevent 1st amendment violations concerning the press.

Also, there isn't any reasonable basis for them to argue that this amendment would allow the regulation of journalists. That's just calculated hysteria on their part.

4. It won't be popular to point this out, but they're wrong in their claim that the constitution has never been amended to limit a specifically enumerated right. The 13th amendment, rightly, did exactly this in 1865. It abrogated the legal right of slaveowners to receive compensation under the 5th amendment. Their property rights were violated because human dignity was more important.

I only mention the above to counter their "rights" hysteria. Not all rights are equal. The right of billionaires and their allies to buy governments does not outweigh the right of the overwhelming population to have a government responsive to their needs and wishes. The ACLU is confusing the issue of having the right to speak and the right to buy others to speak for you. These are fundamentally different issues.

[Nye Bevan]

81. Would you like it to be constitutional to ban corporations from publishing books

that criticize election candidates, in the run up to the election?

[MFrohike]

82. No with a but

Last edited Sat Jun 7, 2014, 01:28 AM - Edit history (1)

I would prefer to simply have to pressure Congress to deal with campaign finance problems rather than have to deal with an unelected body that views itself not as a co-equal, but as a superior branch.

[joshcryer]

84. Good overview.

The ACLU is playing loose here.