Campaign Finance

Amending the First Amendment: What Could Possibly Go Wrong?

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SCOTUS

After the Supreme Court overturned restrictions on political speech by unions and corporations in the 2010 case Citizens United v. FEC, Harvard law professor Lawrence Lessig proposed a solution: a narrower First Amendment. Lessig suggested an amendment stating that "nothing in this Constitution shall be construed to restrict the power to limit, though not to ban, campaign expenditures of non-citizens of the United States during the last 60 days before an election." When I asked him whether that amendment would authorize censorship of speech by corporate-owned news outlets, he reacted as if the possibility had not occurred to him. "It might well be important to make sure that nothing is intended to weaken or to draw into question the immunity granted by the First Amendment to the press," he said. "But that's certainly not my intent." I was amazed that Lessig, an avowed champion of free speech, could so blithely propose to amend the First Amendment without considering the potential for unintended consequences. New York Times legal writer Adam Liptak recently had a similar exchange with former Supreme Court Justice John Paul Stevens, who wrote the dissent in Citizens United and is promoting his new book Six Amendments: How and Why We Should Change the Constitution:

One of those amendments would address Citizens United, which he wrote was "a giant step in the wrong direction."

The new amendment would override the First Amendment and allow Congress and the states to impose "reasonable limits on the amount of money that candidates for public office, or their supporters, may spend in election campaigns."

I asked whether the amendment would allow the government to prohibit newspapers from spending money to publish editorials endorsing candidates. He stared at the text of his proposed amendment for a little while. "The 'reasonable' would apply there," he said, "or might well be construed to apply there."

Or perhaps not. His tentative answer called to mind an exchange at the first Citizens United argument, when a government lawyer told the court that Congress could in theory ban books urging the election of political candidates.

Justice Stevens said he would not go that far.

"Perhaps you could put a limit on the times of publication or something," he said. "You certainly couldn't totally prohibit writing a book."

As you may recall, the First Amendment that Deputy Solicitor General Malcolm Stewart had in mind when he said banning books would be constitutional—an answer that seemed to be a turning point in the case—was the unimproved version, the one that rules out any law "abridging the freedom of speech, or of the press." Imagine how much fun government lawyers could have with the versions of the First Amendment preferred by Lessig and Stevens.

As Damon Root noted last week, Stevens also wants to fix the Second Amendment.

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  1. Justice Stevens said he would not go that far.

    Well then, amend away. We have Steven’s word that they would never overreach their authority.

    1. He said that he’d have to consult with the mayor of Peoria on that.

    2. Steven who? Steven Stevens?

    3. I don’t know what you were implying JW. The supreme court would never stretch the meaning of a phrase to justify broad government powers that were never intended by the ratifiers of the constitution.

      1. Even though the very same Justice tried to stretch the current law to accomplish these goals that, by his own admission, require amending the Constitution.

        Really, this fucking guy tried to get the law to say X, and later admits that X requires constitutional amendments. Then he has the gall to suggest that Justices can be trusted to stay consistent with the obvious meanings of his new amendments.

        1. Justice John Paul Stevens: The same asshole who interpreted “public use” to mean “developer X has promised higher tax revenues, therefore, hit the curb, peasant.”

          Yeah, I trust him to rewrite the Constitution.

  2. I bet they’d drop this in a hurry if it applied to all organizations. Most proponents fully expect unions and news media to be exempted. If that weren’t the case, they’d have a different view.

    What’s truly absurd is that the left benefits from “corporate” donations as much as the right does. More when it’s in power.

    1. I have a idea for an experiment. How about we instead repeal the ability for the gubmint to grant political favors to donors and constituents? Then we’ll wait and see what happens with corporate donations to political campaigns.

      If it goes drastically down, then you stop pissing all over the 1st Amendment. Kapeesh?

      “No, fuck you, cut cronies.”

      1. Well, if the government could do very little, then nobody would spend much time trying to bribe officials, right?

        If they really cared about influence peddling, they’d be trying to limit what politicians can do (and accept) rather than limit the speech rights of everyone else. It’s abundantly clear that this, like most of their issues, has nothing to do with doing the right thing or protecting people’s liberties.

        1. It has to do with control and power. If someone’s proposed “fix” or legislation or rule clearly and immediately limits liberty, then they are lying about any motivation that isn’t “because I want more power or want to give my TEAM more power”. Their supposed reasons can safely be utterly ignored at that point.

          1. Really, why don’t they all network their brains and go to a single hivemind?

      2. How about we instead repeal the ability for the gubmint to grant political favors to donors and constituents?

        Believe it or not, that’s what the reference to “general welfare” in the Taxing Clause was supposed to do.

        1. Which is pretty obvious, with minimal thought, yet many think that’s the whole Constitution in a nutshell.

    2. Most proponents fully expect unions and news media to be exempted.

      As well they should. The campaign support of the media and the unions, especially at the end of the campaign, is mostly “in-kind” contributions that would not fall under “expenditures.”

  3. “As Damon Root noted last week, Stevens also wants to fix the Second Amendment.”

    I’m pretty sure the Second Amendment would like a chance to fix Stevens.

  4. Amazingly, I did not realize until last week that Citizens United also applied to unions. No excuse on my part – I should have been more diligent. But I find it fascinating that in all the news stories I’ve heard & read since the decision, that never seems to come up. It’s always about “the corporations.”

    1. Not only unions. The stories always talk about “corporations” like General Motors, Pfizer, and Monsanto.

      No mention of the real targets like the NRA and, well, Citizens United. You know, where the “little people” can pool their donations and accomplish something.

      1. They tend to leave out Soros owned stuff too. Odd that, yet they never miss a Koch.

      2. Right, it includes non-profits that are *explicitly formed to argue about political causes*.

        I have occasionally gotten someone to reconsider by saying, “So, you think that Murdoch and the Kochs / Soros, whoever should be able to say whatever they want, but a bunch of poorer people shouldn’t be able to pool their money to make a movie and put it on YouTube?”

  5. Why bother? Just get five Justices to agree that the First and Second Amendments mean whatever they want it to mean and that’s it.

    1. That’s pretty much what it boils down to. 8-(

      1. That’s what happened with the so-called “New Deal”, when the justices hectored by the executive and legislative branches acquiesced and approved a new definition of the General Welfare clause.

  6. Hey, at least these guys are pushing Constitutional amendments, not judicial activism, the classic example of which was the ridiculous Roberts ruling that Obamacare was a tax. He wrote new law, any way you slice it. At least these guys (who are wrong) are proposing to do it the right way, which is much harder, thankfully.

  7. They can’t even follow the original constitution , so why bother even amending it?

    Based upon the performance of government and the individuals that have voted them in, they are no stewards of freedom and liberty, so the only thing an amendment would do is further restrict or eliminate those rights.

    Folks should learn from the failed experiment that is government, and should revoke their consent to be governed.

    1. The government would just revoke the revocation.

      1. …And back it up by force, after revoking the 2nd amendment, of course.

  8. Good Lord! Yea, amend the thing every time some crackpot comes along thinking he found a loophole in the “congress shall make no law” part. That should work.

  9. FIRE IN A CROWDED THEATER DERP FIRE IN A CROWDED THEATER FIRE IN A CROWDED THEATER FIRE IN A CROWDED THEATER DERP FIRE IN A CROWDED THEATER FIRE IN A CROWDED THEATERFIRE IN A CROWDED THEATER DERP FIRE IN A CROWDED THEATER FIRE IN A CROWDED THEATER FIRE IN A CROWDED THEATER DERP FIRE IN A CROWDED THEATER FIRE IN A CROWDED THEATER LA LA LA LA LA LA LA LA LA LA LA LA LA LA LA LA LA LA LA LA LA CAN’T HEAR YOU!!!!!!!!!!

    1. And according to Oliver Wendell Holmes, falsely shouting fire in a theater is the same as peacefully protesting against WW1.

      1. yup, it was actually socialists wasnt it?

      2. Also according to Holmes, forced sterilization for people the government deems “defective” is A-OK.

        No surprise he’s the touchstone figure for leftist legal thinking in the US today.

        1. Another Holmes- 1st Ammendment protection doesn’t apply to movies.

      3. Holmes was actually moderating the rest of the Court’s much harsher views on wartime speech in that opinion.

        http://en.wikipedia.org/wiki/S…..f_the_case

        1. Yes, but is it OK to yell “movie” in a crowded fire house?

      4. Wasn’t he the one that the nazis at Nuremburg kept quoting to try to excuse their war crimes?

        -jcr

    2. Yeah, that one drives me nuts. Especially since Schenck holding was later overruled.

    3. I thought shouting “fire” in a theater was a union thuggery tactic to force the theater owner to let the projectionists unionize (back when theatre fires were quite common since film itself was highly flammable). The union was all about safety, doncha know.

  10. “The ‘reasonable’ would apply there,” he said, “or might well be construed to apply there.”

    That’s some mighty fine judiciatin’.

    Why TF is it so hard to accept “Congress shall make no law …”?

    Also, this “60 days before an election” concern is bullshit. If we *must* restrict campaign spending — Allow every candidate 30 seconds on primetime TV to announce “I’m running” and let ’em spend $50K on a website.

    1. After wearing down one of my progressive acquaintances, I got them to admit that their opposition to the Citizen’s United decision was based on his idea that perhaps people are too dumb to be allowed to vote without the government making sure that things stay “fair”.

      1. Yep. And another thing these clowns don’t consider is that campaign spending often backfires.

        1. Exactly. it’s never been about fairness. It’s the idea that people they don’t like are able to use their money to fund candidates that agree with them.

      2. But apparently they are smart enough to figure out which set of politicians with zero medical background should make all my health care decisions. Those voters are real idiot savants. I guess that is one point the proglodytes have right.

    2. “Why TF is it so hard to accept “Congress shall make no law …”?

      If you are a craven, power-mongering sociopath then that translates to wahwahwah wahwahwah wah wahwah wah.

  11. Is it just me or are our leaders (elected and unelected) doing their very best to fuck things up?

    1. Not just you.

  12. How the FUCK do you get to be on SCOTUS and not get what the First A means?

    Oh, wait … Obama, Bush, Clinton, Bush … dangit.

    1. “Shall make no law” is hard to understand. So many subtleties.

    2. Oh, wait … Obama, Bush, Clinton, Bush … dangit.

      Believe it or not, the appointees from Reagan until now, even the most liberal ones, are practically reactionary conservatives compared to those the preceded them.

  13. “reasonable limits on the amount of money that candidates for public office, or their supporters, may spend in election campaigns.”

    The stupid in this is that the money spent on election campaigns goes for advertising to inform voters of candidates’ positions. Why is limiting that information a good idea? (Yes, I know because it favors incumbents and major parties. I mean why would it be a good idea for voters.)

    “The ‘reasonable’ would apply there,” he said, “or might well be construed to apply there.”

    Really? A former Supreme Court justice said that with a straight face? The law would be applied reasonably? Or the reasonability might be construed? ROTFLMAO

    1. I like the part where he admits that it might not be applied reasonably.

      Isn’t that what “might well be construed” means? I mean, to the extent it means anything.

    2. The stupid in this is that the money spent on election campaigns goes for advertising to inform voters of candidates’ positions. Why is limiting that information a good idea? (Yes, I know because it favors incumbents and major parties. I mean why would it be a good idea for voters.)

      The argument comes down to influence, vis-?-vis fairness. By spending more money, you get more speech than I do. And the people who see fairness as a higher virtue than freedom, the answers seem so very simple.

  14. …”Justice Stevens said he would not go that far.”…

    Well, in that case, nothing can go qrong!

    1. qrong

      Nice band name.

      1. Of course Prong was one of their major influences. Snap your fingers, snap your neck.

    2. Something just qdid.

  15. I was amazed that Lessig, an avowed champion of free speech

    No he’s not. He’s for free speech while his side controls the debate.

  16. ” I was amazed that Lessig, an avowed champion of free speech, could so blithely propose to amend the First Amendment without considering the potential for unintended consequences.”

    Why?

    1. Who says that the consequences that are suggested here are unintended.

      It seems to me that the clear intention is to suppress any speech that would counter the interests of the ruling elite.

  17. Dude, I never even thought about that before.

    http://www.GotsDatAnon.tk

    1. Yeah, well, neither did Stevens.

  18. Lessig suggested an amendment stating that “nothing in this Constitution shall be construed to restrict the power to limit, though not to ban, campaign expenditures of non-citizens of the United States during the last 60 days before an election.”

    Is his plan to add this amendment before or after the one that confers such power?

    1. restrict the power to limit, though not to ban, campaign expenditures

      Naturally, among other things, it begs the question of which enumerated power gives the fed the authority to regulate campaign spending in the first place.

      However, the power to limit is the power to ban. If they allow people to spend no more than $5 in the last 60 days, how is that not a de facto ban.

      And is Lessig either so stupid that he doesn’t see this, or so mendacious that he’s hoping to slip it past?

      1. What’s the dif? He hopes to slip it past, and will then shit himself when it’s used against “his” side.

      2. I’m voting mendacious. He has a hobby horse, and, again, he probably leans more towards fairness/equality than liberty.

      3. “…. it begs the question of which enumerated power gives the fed the authority to regulate campaign spending in the first place.”

        In other words, like Stevens clear admission that the second amendment protects citizens individual RKBA his dissent in Heller notwithstanding, this is Lessig declaring that McCain Fiengold was clearly unconstitutional.

        1. Thinking more about it, those two examples show me that people both on the right and left that argue against liberty know full well what they are saying. They are just lying motherfuckers.

      4. ‘And is Lessig either so stupid that he doesn’t see this, *AND* so mendacious that he’s hoping to slip it past?’

        Yes.

  19. I was amazed that Lessig, an avowed champion of free speech, could so blithely propose to amend the First Amendment without considering the potential for unintended consequences.

    Why would that amaze you, and what would make you think that “an avowed champion of free speech” in academia even knows what the term means? It’s just as likely that Mr. Lessig thinks free speech means fighting for “speech equality” or a better redistribution of speech towards “marginalized voices”, or somesuch.

    1. A “balance”!

      /derp

    2. Why is Sullum surprised that an advocate of “campaign finance reform” advocates campaign finance reform?

      http://en.wikipedia.org/wiki/Republic,_Lost

  20. Can this be a pro forma question in hearings for new justices? What amendments would you change or add, and what would the changes be?

    Maybe they ask that already, but I doubt Stevens broadcasted that he wants to add six amendments that wipe out most if not all of the Bill of Rights when he was appointed.

    1. They’d just lie, anyway. Lifetime appointment, what’s the Senate gonna do?

    2. “If you could be a tree, would you be the Tree of Liberty?”

  21. What a total asshole.

  22. “It might well be important to make sure that nothing is intended to weaken or to draw into question the immunity granted by the First Amendment to the press,” he said. “But that’s certainly not my intent.”

    Is it just me, or did he just say that its certainly not his intent to make sure that nothing weakens or draws into question the immunity granted to the press?

    1. Which one of RC’s laws is the one that goes “Not all consequences are unintended”?

      1. “Foreseeable consequences are not unintended”.

        Thus the reason RC asks “stupid or mendacious?”.

    2. That’s exactly how I read it.

  23. Psh. This guy’s lame. There’s a much easier way to do what he wants: as associations of people, corporations/unions/NPOs must have amongst their membership sex-trafficking narcoterrorists (if they don’t, they may someday because statistics). A member or two may have even one day considered driving after having a beer or two. Since the Constitution already doesn’t apply to people accused of such, it only leads to follow corporations/unions/NPOs don’t have any Constitutional rights to speak of.

  24. Wishing Stevens dead, sooner rather than later. Fuck all these black-robed power fucktoids.

    Lessig can go die right after Stevens. It’d be OK with me if he were to drown in his own blood.

    That is all.

  25. What pisses me off about advocates of campaign finance regulations is their dishonesty. I wished they were just honest and admit that they aren’t really fighting for fairness (whatever the fuck that is) but fighting to keep certain individuals and groups that aren’t in their eyes good from giving money to their preferred candidates. It’s all about limiting the speech of those who disagree with them.

  26. A few observations:

    1. Several people have commented that these proponents of campaign finance likely just want to limit speech by those they do not like. In fairness to them I will say that their beloved McCain-Feingold applied to unions and corporations that give tons of money to Democrats regularly, so I am not sure about that.

    2. I am not sure about the ‘gotcha-ness’ of the press question to Lessig since I do not see how his provision would trump the express press clause.

    3. What is up with campaign finance proponents obsession with ’60 days before the election’ limits? Is spending tons of money for months up to that date irrelevant to them, and then suddenly it is bad?

    4. The non-citizen language is interesting. What would the opponents of campaign finance restrictions say if the Communist Party of China were spending hundreds of millions of dollars to US campaign efforts? Would you support a restriction then on that, or not?

    1. the Communist Party of China were spending hundreds of millions of dollars to US campaign efforts?

      What makes you think they clandestinely haven’t already? And have we gotten the Manchurian Candidate yet?

    2. …”What would the opponents of campaign finance restrictions say if the Communist Party of China were spending hundreds of millions of dollars to US campaign efforts? Would you support a restriction then on that, or not?”

      No.
      And that’s not uncommon. The Comintern spent millions when millions was a lot. Dunno what the Nazis spent, but it wasn’t trivial. And I’m sorry they didn’t manage to end the reign of FDR.

    3. Re: #3: It’s the belief that voters are stupid and easily influenced, so the Monied Interests must be stopped from hypnotizing the masses just before an election. Because the hypnotic effects of advertising wear off within 60 days.

  27. Awfully fuzzy-headed thinking from Lessig there. I guess he’s so scared of the KOCHTAPUS that he’s ready to fuck us all over just to hurt them.

    -jcr

  28. I don’t get the problem in allowing corporations or associations to spend limitlessly on campaigning if both parties can do it. Are the Dems afraid their ideas won’t garner enough money to compete with the Teathuglicans?

    1. I think it’s the presumption that the GOPers have more money, which, given union contributions, is really silly.

      1. Ok, that’s what I was thinking but I thought surely there was more to it than that, i.e., some overriding moral principle at stake. But then I realized Dems don’t have any morals or principles.

        But I don’t see the Dems in want of campaign assistance. It’s not like the entire spectrum of mass media isn’t one giant praise-a-thon for the Democratic party.

        1. “It’s not like the entire spectrum of mass media isn’t one giant praise-a-thon for the Democratic party.”

          This is prolly a reason I ignored: They desire limits on corporations, *except* ‘news organizations’.
          So, yeah, it’s one more thumb on the scale.

    2. The dems know that they have a massive advantage when it comes to media acting as their propaganda wing, and they’re afraid that anyone calling “bullshit” on them will make their whole edifice of lies crumble. Feet of clay and all that.

      Trying to stop rich people from spending money on campaign ads is just one part of their suppression efforts. Other parts are things like obnoxious shithead university children shouting down invited speakers from the other team.

      -jcr

  29. Serious question: Are there any legitimate studies proving campaign spending is really “worth it”? (IIRC, spending on education has been shown to be essentially a non-factor.) Of course, this presumes that the desired results of the spending are something above board.

    1. Rich|4.23.14 @ 8:58PM|#
      “Serious question: Are there any legitimate studies proving campaign spending is really “worth it”?”

      Reason has covered this at least a couple of times, and I’m pretty sure the result is ambiguous at best.
      You might do a search if you can pick a key word.

      1. Thanks, Sevo.

        I would suspect ambiguity in this arena. Perhaps the thing to look at is ***shudder** exit-polling: “Did any campaign ads influence you one way or the other?”

      2. I don’t know about studies, but Marc Rich sure got his money’s worth from the Clintons.

        -jcr

    2. I bet that if the limits are off, you’d eventually see an equilibrium come into being where corporations realized they could only waste so much money trying to buy influence in an election. And the voters might actually become smarter about whose trying to buy their vote.

      The real fix is to limit government spending and giveaways so there are no enticements to spend billions on a campaign. Obviously, I’m joking as that’s an unpossibility.

      1. And the voters might actually become smarter about whose trying to buy their vote.

        I have to keep reminding myself that many voters are not, um, critical thinkers.

        Perhaps we could amend the Constitution so that broken campaign promises are required to be prosecuted as perjury.

        1. In 1st form (7th gr.) Harry Allison quieted our civics (whatever it was called) class to listen for a few secs. to the passing sound truck saying, “Vote for [Who Could Remember?].” Then he pointed out that someone out there was going to vote on that basis.

        2. Regarding perjury, I would certainly support a law that basically said if you’re on the job, you’re under oath, and impose prison terms for anyone lying to the public when speaking in their official capacity.

          A conviction for “Mendacity under color of authority” should also bar the convict from ever holding any elective office, government employment, or receiving any pension or relief payments.

          -jcr

    3. Funny you should mention this, I was just talking with President Perot and Senator Huffington about this very issue…

  30. Sort of related:
    Wonder if Clooney walked off when someone made comments Bush?:

    “George Clooney blows up in Vegas over Obama insults”
    […]
    “He called the president an (expletive deleted) … that is a fact …” Clooney said”…
    http://www.usatoday.com/story/…..n/8050769/

    George wouldn’t sit at my table.

    1. But he told the paper that Clooney first got upset at the dinner when one of the CAA execs told a joke about former Soviet President Mikhail Gorbachev.

      Clooney is touchy about Gorby? In 2014?

      1. I’d say Clooney is pretty well convinced that his opinions are the ones that matter.
        And he would be welcome at my table so long as he didn’t gripe regarding my opinions of his politics. Lord knows, as a libert’n in SF, I’ve had to sit through comments on mine.

    2. “When he’s drinking, (Clooney) considers himself a close personal buddy of the president,” he said. “Clooney’s fun to be with when he’s sober. If you have a chance to drink with him, you want to get there early, and don’t stay late.”

      That’s hilarious.

  31. The real threat to the First Amendment is somewhere some SoCon thinks pornography is wrong.

    1. It’s not just the SoCons. Radfems are hot and bothered to ban it, too.

      -jcr

      1. Or Hilary who wants to ban video games.

  32. Our newest brain-dead isn’t here?
    S/he was all over the ‘hate speech’ thread the other day claiming to know how to outlaw shat should be outlawed and not anything that mattered.

  33. Pfft, what an amateur this Lessig is.

    Why would you bother amending when you could just justify restrictions under the Commerce Clause (obviously), the Necessary and Proper Clause (dude, compelling government interest!) or the General Welfare Clause (monied interests are a danger to the public!).

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