Last year Senator Tom Udall (D-N.M.) introduced Senate Joint Resolution 19, a proposed amendment to the Constitution. Describing the amendment as an effort to “advance the fundamental principle of equality for all,” and “to protect the integrity of the legislative and electoral processes,” it would in substance modify the First Amendment. Specifically, it would give Congress the power “to regulate the raising and spending of money” in federal elections, including by limiting contributions to candidates for federal elections and expenditures by, in support of, or to oppose those candidates. It also would also confer a similar power on the states, while a separate part of the amendment makes clear that it would not authorize Congress to “abridge the freedom of the press.” The proposed amendment does not mention the Supreme Court by name, but the Court was very much at the forefront of a hearing held yesterday by the Senate Judiciary Committee. The resolution has no realistic chance of generating a constitutional amendment. The amendment would need a two-thirds vote of both the House of Representatives and the Senate – a near impossibility in today’s gridlocked Congress. Then, it would require ratification by thirty-eight states. Even if largely symbolic, the hearing still garnered significant interest from the public. A capacity crowd filled a hearing room large enough that it is often used for Supreme Court confirmation hearings. Supporters of campaign finance regulation carried posters (despite a sign outside the hearing room prohibiting signs) and wheeled in boxes containing petitions in support of the amendment, while a group of women sat silently in the hearing room with blue tape over their mouths, presumably (although it was not entirely clear) to protest the amendment.

Senator Patrick Leahy (D-Vt.) opened the hearing by describing the goal of the proposed amendment: “to repair the damage done by a series of flawed Supreme Court decisions that overturned longstanding precedent and eviscerated campaign finance laws.” Leahy emphasized recent rulings in Citizens United v. Federal Election Commission, holding that the government may not prohibit corporations or unions from spending money to support or denounce individual candidates in elections, and McCutcheon v. Federal Election Commission, striking down aggregate limits on campaign contributions. In his view, the Court has “opened the floodgates to billionaires who are pouring vast amounts of unfettered and undisclosed dollars into political campaigns across the country.” Leahy emphasized that he had “long been wary of attempts to change the Constitution because I have seen” such proposals “used, like bumper stickers, merely to score political points.” But in his view, an amendment is necessary here because the Court’s decisions in Citizens United and McCutcheon were “based . . . on a flawed interpretation of the First Amendment.”

Leahy was followed by Senator Charles Grassley (R-Iowa), the Committee’s ranking Republican member. Leahy had previewed some of the key themes that other supporters of the amendment would echo in the hearing, and Grassley did the same for Republicans. He contended that, “today, freedom of speech is threatened as it has not been in many decades,” and he observed that the proposed amendment would be the very first amendment in history to the Bill of Rights. Grassley warned of the amendment’s potentially broad sweep, cautioning that it could, for example, allow Congress to eliminate campaign contributions altogether. “It’s outrageous,” he concluded, “to say that limiting speech is necessary for democracy.”

There were two panels of witnesses. Testimony in first came from Senate Majority Leader Harry Reid (D-Nev.) and Senate Minority Leader Mitch McConnell (R-Ky.) – according to Leahy, the first such joint appearance in the history of the Judiciary Committee. Reid described the current state of the campaign finance system in ominous terms, telling the committee that “the flood of dark money into our nation’s political system poses the greatest threat to our democracy that I have witnessed during my tenure in public service.” He then went on to recount his experiences running for office, citing them as “firsthand” evidence of “how this dark money is perverting our political process.” McConnell had a very different view, describing the proposed amendment as “incredibly bad.” More notably, he voiced what virtually almost everyone else knew, even if they didn’t acknowledge it publicly: that the proposed amendment “will never pass Congress.” Instead, he suggested, the hearing was merely “a political exercise” intended to stir up the Democratic Party base and bolster voter turn-out at upcoming elections.

A member of the Committee, Senator Ted Cruz (R-Tex.) delivered an impassioned statement condemning the proposed amendment. It would give, he proclaimed, Congress “the power to muzzle” such diverse groups and individuals as the National Rifle Association and the Brady Campaign to Prevent Gun Violence, Michael Moore and Dinesh D’Souza (a well-known conservative who recently pleaded guilty to violating campaign finance laws), the Anti-Defamation League, and the NAACP. Invoking liberal lions like the late Senator Edward Kennedy and former Senator Russ Feingold, he told current Democratic senators who supported the amendment that they should be embarrassed. “Where,” he asked, “did the liberals” who protected the First Amendment go?

Cruz’s statement drew a sharp rebuke from Senator Charles Schumer (D-N.Y.), who criticized Cruz’s “over-the-top rhetoric.” Responding to Cruz’s suggestion that Americans are astonished by the prospect that Congress “would dare to support repealing the First Amendment,” Schumer countered that what actually “makes Americans gasp” is the possibility that “a small handful of people can have a huge effect on the political process.” Schumer also questioned whether, based on his professed support for the First Amendment, Cruz was opposed to – for example – laws banning child pornography or libel. (These questions lacked the rhetorical punch that Schumer had probably intended because Cruz had by then left the hearing room, so that the questions were directed at an empty chair.) Schumer also lamented that no Republicans would support laws targeted at increasing disclosure of campaign contributions. And like others at the hearing (on both sides of the aisle), Schumer summoned the spirit of Thomas Jefferson, pronouncing that, “if [he] were looking down,” he would agree with the proposed amendment.

The second group of witnesses were law professor Jamin Raskin, legendary First Amendment lawyer Floyd Abrams, and North Carolina state senator Floyd McKissick, Jr. (the son of the late civil rights leader Floyd McKissick, Sr.). Consistent with the largely one-sided nature of the hearing, the witnesses rarely engaged at any length with senators holding contrary positions on the proposed amendment. But to the extent that they did – and it was most likely to be Abrams who did – the exchanges tended to be substantive rather than merely an effort to score points.

Like Harry Reid in his testimony, McKissick related his experiences as a legislator for the past seven years. His time in the North Carolina Senate, he told the committee, can be divided into two parts: before and after the Court’s decision in Citizens United. He described what he characterized as an influx of money from outside the state into the 2010 and 2012 elections: as a result, he summarized, it became “harder for ordinary people to vote,” because of new restrictive voting laws passed by the North Carolina legislature, while at the same time it “got easier for rich people to put money in.” He decried recent efforts to unseat a justice on the North Carolina Supreme Court through expensive advertising as “unlike anything we have ever seen” and prophesied that such efforts could be imitated “in any state.”

Floyd Abrams took a very different tack in his testimony, reiterating that no ruling providing protection under the First Amendment has ever been reversed by a constitutional amendment. “It’s not a coincidence that, until today, the First Amendment has never been amended,” he noted, and he urged that “self-restraint should win the day here” as well. In response to a question from Senator Grassley about whether the proposed amendment was necessary to prevent the wealthy from drowning out other speech, he equated that argument with “telling a newspaper you shouldn’t have so many editorials.” Unlike Reid and McKissick, Abrams regarded the 2012 elections as demonstrating that “the system was working”: there was lots of money and lots of speech. This amendment, he continued, would threaten the functioning of the system by regulating speech broadly, in a way that would “change substantially . . . the whole nature of American society as a speech-protecting society.” (Abrams also told the committee that the amendment would result in “enormous litigation,” but added humorously that (as a lawyer) he doesn’t “mind litigation, personally.”)

Law professor Jamin Raskin – who, like McKissick, is also a state legislator – focused primarily on the amendment from the perspective of a constitutional law scholar. He described Citizens United as having “bulldozed” the wall that separated corporate and personal wealth from democratic politics; the proposed amendment is necessary, he argued, to rebuild that wall. And although the amendment was intended to respond to the Court’s decisions in McCutcheon and Citizens United, he warned that more changes to the campaign finance system could be afoot in the future: “we see tremendous momentum on the Court,” he said, “to strike down all campaign finance laws.” Raskin found “some hope” for campaign finance reform, however, in the Supreme Court’s 2009 decision in Caperton v. A.T. Massey Coal Company, in which the Court – in an opinion by Justice Anthony Kennedy – held that a justice on West Virginia’s highest court should have recused himself from a case involving a coal company whose CEO had contributed large sums of money in support of the justice’s election.

By the early afternoon, attendance had dwindled sharply among both senators (who had been called away for at least two votes) and the public. Senator Richard Blumenthal (D-Ct.) eventually adjourned the hearing, roughly three hours after it began. Whether and when we will see further action on Senate Joint Resolution 19 remains to be seen; what is all but certain, though, is that the campaign finance issue will surface again out in the field between now and the November elections.

Recommended Citation: Amy Howe, Senate Judiciary Committee holds hearing on proposed campaign finance amendment, SCOTUSblog (Jun. 4, 2014, 10:42 AM), https://www.scotusblog.com/2014/06/senate-judiciary-committee-holds-hearing-on-proposed-campaign-finance-amendment/