In what amounts to a declaration of war on the Roberts Supreme Court, Senate Democrats said Wednesday that they will force a vote this year on a constitutional amendment to overturn several landmark First Amendment campaign finance rulings and give Congress explicit powers to set donation and spending limits for all federal campaigns.
Sen. Charles E. Schumer, the New York Democrat driving the effort, said the justices have taken the First Amendment too far and need to be reeled in by Congress.
He said he had the blessing of fellow Democratic leaders to bring the amendment to the floor for a vote “rather soon.” They acknowledged that they have little hope of succeeding but said the vote was a way to send a message to the justices.
“The First Amendment is not absolute,” Mr. Schumer said. “The only way that we can save American democracy, so that people still believe it’s one person, one vote and there’s a semblance of fairness, is a constitutional amendment.”
The move kicks off a fundamental debate over free speech, the limits of congressional powers and the nature of political campaigns.
Opponents said they were shocked that Democrats would attempt to amend the Constitution to limit something that the Supreme Court has called a fundamental right and that the move was another way to try to insulate lawmakers from having to hear from voters.
SEE ALSO: Ex-Justice Stevens backs amendment on campaign funds
“Campaign finance reform restrictions are always pitched as ’Let’s prevent corruption, let’s hold politicians accountable,’ and they do exactly the opposite,” said Sen. Ted Cruz, Texas Republican. “Every single restriction this body puts in place is designed to do one thing — protect incumbent politicians.”
Campaign finance has been a touchy issue for decades but has taken on a more pointed tone in recent years.
In his 2010 State of the Union address, President Obama scolded the justices, sitting directly in front of him in the House chamber, for their Citizens United decision issued just days earlier.
In that case, a divided Supreme Court ruled that interest groups could raise and spend money freely to run ads defending their positions in elections. That struck down key parts of the campaign finance laws Congress enacted, including parts of the 2002 McCain-Feingold campaign finance law.
Democrats argue that the court has unleashed a spree of big-spending billionaires intent on distorting democracy. On Wednesday, they again singled out the Koch brothers, who support conservative causes.
But the Supreme Court has ruled that campaign spending is free speech and thus entitled to strong First Amendment protections, particularly in cases in which members of Congress disagree with what is being said.
“Money in politics may at times seem repugnant to some, but so too does much of what the First Amendment vigorously protects,” Chief Justice John G. Roberts Jr. said in his majority opinion in this year’s McCutcheon v. FEC case. “If the First Amendment protects flag burning, funeral protests, and Nazi parades — despite the profound offense such spectacles cause — it surely protects political campaign speech despite popular opposition.”
One of Chief Justice Roberts’ former colleagues, retired Justice John Paul Stevens, testified to the Senate on Wednesday that the court has it wrong. He said that when elections are at stake, Congress should be allowed to impose a level playing field for all candidates.
“While money is used to finance speech, money is not speech,” he told the Senate Rules and Administration Committee.
Democrats’ amendment, sponsored by Sen. Tom Udall, New Mexico Democrat, would overturn the landmark 1976 Buckley v. Valeo case that set the outlines of modern campaign finance jurisprudence, as well as the Citizens United decision and the McCutcheon ruling from just a few weeks ago that overturned limits that prevented individuals from giving to as many campaigns as they want.
The amendment would give Congress explicit powers to put a total limit on how much campaigns could raise or spend, and how much outsiders could spend to support or oppose federal candidates. It also would allow states to impose their own restrictions.
Mr. Udall’s amendment specifically says it wouldn’t infringe on freedom of the press.
But Mr. Cruz said that raised all sorts of thorny questions.
“Why does a corporation like The New York Times or CBS or any other media corporation … enjoy greater First Amendment rights than individual citizens?” Mr. Cruz said.
Amending the Constitution is difficult. It would take approval by two-thirds of each house of Congress — something that is unlikely in either chamber right now — and then would have to be ratified by three-fourths of the states.
In the wake of the Citizens United decision, Democrats tried but failed to get legislation allowing more disclosure through Congress. Those changes would have required only a majority vote, so the chances are dim for more powerful changes envisioned in the constitutional amendment.
The last amendment that was ratified was more than 40 years ago, when the 26th Amendment granted those 18 and older the right to vote.
A 27th Amendment, restricting Congress’ ability to change its own salary, was ratified in 1992, but it was proposed as part of the original package in 1789 that became the Bill of Rights.
• Stephen Dinan can be reached at sdinan@washingtontimes.com.
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