Sen. Dodd's Proposed Constitutional Amendment to Overturn Citizens United Goes Way Too Far

I was really curious when I saw Dan Tokaji's blurb that Chris Dodd had introduced a constitutional amendment to overturn the Citizens United decision. (See here, here, here and here.) I wondered how Dodd would handle the balance between free speech and maintaining the integrity of elections. I got quite a shock:

SECTION 1. Congress shall have power to regulate the raising and spending of money 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 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..

This amendment, if adopted, would mean that Congress and the states would have unchecked power to regulate "the amount of expenditures that may be made ... in support of or in opposition to" a candidate by anyone. That language doesn't apply to just corporations, it applies to real people.

The power it grants to government is ludicrously over-broad. As written, the amendment would allow the government to completely ban all election-related speech that involved an expenditure of money, such as operating a blog or printing leaflets. In fact, the government could ban all election-related fundraising, meaning that it could prohibit you from even soliciting donations for your favorite advocacy organization.

The net effect of this amendment is not to overturn Citizens United; it's to overturn every campaign-finance decision on the books and replace it with absolute governmental authority over election-related speech. I'm appalled that Sen. Dodd would even have proposed it. No one in their right mind should support it.

Comments

[40yrs.blogspot.com]

The question here is whether money is speech, I would argue not.

I also think that this is grand standing intended to be a brush back pitch at SCOTUS for crowding the plate.

I don't think that it is intended to pass.

BTW, the idea that an absolute limit on campaign spending for a campaign, even by rich guys, might become the law of the land does not worry me so much.

[Mithras]

I would say that if spending money is required for you to speak, then spending deserves some constitutional protection. Otherwise, the government can ban you from using your money to speak, which covers everything from buying a TV ad to paying for blog hosting to buying the materials to make signs and flyers. This isn't the same as saying "money is speech", so it leaves us with the task of drawing lines.

The least defensible restrictions are on individuals spending their own money on advocating for issues or candidates. I buy the anti-corruption argument for the current restrictions on campaign contributions by individuals. The most defensible restrictions are bans on corporations making donations to campaigns. And I think advocacy for candidates or issues by corporations falls in between the last two items, and requires even finer line-drawing. I was perfectly happy with banning corporations from advocating for candidates but protecting their speech on issues. Citizens United opens up a big, messy can of worms we probably will come to regret for the next 20 years.

I don't know if Dodd means for this to pass or not. I have to take it on the merits, and I think on the merits the amendment sucks. Why not craft a better one and try to pass it?

A cap on spending by the campaigns themselves doesn't bother me, either. A cap on spending by individual supporters of a candidate does.

[zenpundit]

Ah, commandante Dodd. No surprise.

Money is not exactly speech, it's the potential to make your speech heard and influence anyone.

"This amendment, if adopted, would mean that Congress and the states would have unchecked power to regulate "the amount of expenditures that may be made ... in support of or in opposition to" a candidate by anyone. That language doesn't apply to just corporations, it applies to real people."

That's not a bug, it's a feature, in the eyes of many Democrats and not a small number of Republicans. They don't want to be criticized or questioned or to be effectively challenged at election time. A seat in Congress should be, barring a scandal or crime, something akin to a peerage in 18th century Britain. We are supposed to shut up and do as they tell us. The ancient Greeks call this political philosophy "oligarchy"

And they wonder why Congress has an approval rating of 10 %.