The 28th Amendment?

[SixFoot]

Senate moves forward with amendment to the Constitution on elections TheHill

"The Senate on Monday advanced a constitutional amendment meant to reverse two recent Supreme Court decisions on campaign spending."

https://www.aclu.org/sites/default/files/assets/6-3-14_--_udall_amendment_letter_final.pdf

Pages 4 and 5 really caught my attention. Woe is the day I found myself in agreement with something the ACLU said.

Recognizing both the severe harm to political debate through overbroad laws that suppress all issue advocacy mentioning a candidate for office, and the difficulty in making principled distinctions between issue and express advocacy under a totality of the circumstances approach, the courts have rightly rejected measures that allow the government to restrict issue advocacy at all.

Sections (1)(2) and (2)(2) are designed to, and would, completely overturn that legal distinction between issue and express advocacy and permit the government to criminalize and censor all issue advocacy that mentions or refers to a candidate under the argument that it supports or opposes that candidate.

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;


Sen. Ted Cruz gives his breakdown on his disapproval in this lengthy 51 minute video:





I'm personally all for the idea of severely restricting the ability of a corporation (not actual people) to drown a candidate in hundreds of millions of dollars, but this is an astronomically stupid way of going about it. This vote is just further proof of tyranny masked in good intentions. I personally do not want the last Amendment of the Constitution to be the one that destroys the First.

Link HERE to Senate Resolution.

"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances."



Your thoughts?

 

[oldfart]

I think you are focusing on the wrong aspects of the problem. Five former heads of the ACLU have sent a letter in support of the constitutional amendment and I find their reasoning persuasive.

Up until Citizen's United, the Supreme Court had relies upon a distinction: measures that prohibited selected or targeted speech were subject to a strict test and would be almost always found unconstitutional. But measures limiting free speech that applied to all speech would be approached with a broader test weighing the government interest in promoting some useful public purpose against the restrictions on the speakers. The classic example is a municipality is allowed to prohibit the use of loudspeakers in public in residential neighborhoods after 10:00 PM at night. The inconvenience to the speaker is less than the right of the citizens to the quiet enjoyment of their property at night and the maintenance of good order. Obviously, as in any balancing test, there will be close decisions, but that is why we have legislatures and courts.

The real question posed by the constitutional amendment is which type of speech is being burdened, and what is the proper standard. I would argue that the speech is clearly of the second type, as the amendment targets an activity engaged in by all parts of the political spectrum. Ted Cruz and Hillary Clinton would be both inconvenienced in raising funds by such restrictions. The argument that one particular candidate, party, or ideology would be more sensitive is an argument ignoring the ephemeral and shifting fortunes of politics.

If the issue is the broader test, not all possible campaign finance laws would meet the balancing test. For example, a $200 limit on all campaign financing donations would probably not meet the test. But in a system where less than 200 donors account for over 60% of all the "black money" given, some limitation could be reasonable.

In a related issue, I do not think that the founders had any interest in protecting anonymous speech. In their era voting was public and everyone in the community knew how every citizen voted. I fail to see much value in public political discourse when the author is hiding behind some organization created solely to make the source of the message opaque. At the least, I believe that if political contributions (including issue ads) are protected speech in any way, the First Amendment allows and good public policy demands accountability by requiring disclosure of the author and the funding source of the speech. Then the public could determine to what extent the message is self-serving.

 

[dblack]

Problem: Congress is abusing its power - influence peddling to the highest bidder.
Solution: Give Congress more power!!

Uh huh.....right.

 

[Politico]

Problem. There are not going to be any new amendments.

 

[dblack]

Problem. There are not going to be any new amendments.

I'm not so sure. This a giant prick-tease being offered up by the Democrats. I suspect "moderate" Republicans (who, let's face it, love authoritarian gov't even more than the Democrats) will start to roll over on this - one by one - in the coming weeks.

Sure hope I'm wrong!

 

[martybegan]

Nothing like the smell of tyranny in the morning, yummy.

 

[Mad Scientist]

How about making donations from Foreigners Illegal?

"Only US Citizens may donate to Political Parties and the Political, Electoral system. Furthermore, no bundling in any form shall be allowed".

Something like that.

 

[boedicca]

The amendment is a Job Protection Plan for incumbents. The net effect is that individuals will not be able to speak out against incumbents.

It's a horrible idea which invalidates the 1st Amendment.

 

[boedicca]

Problem. There are not going to be any new amendments.

It's not a problem, it's a feature. The system is designed to keep simple party majorities from altering The Constitution...which is why they have set up the 4th Branch of government in the Regulatory Bureaucracy to do their dirty work for them.

 

[whitehall]

After they rewrite the 1st Amendment which one are they going after, the 2nd and maybe the 5th?

 

[Shrimpbox]

I cannot find anything that says 200 people control 60 percent of the black money in us elections. I assume unions are included in that 200. I assume Karl roves crossroada is included as is obamas political operation( which is run out of the White House).

I am concerned about money in politics, about congressmen having to spend half their waking hours raising money instead of on our business. I don't know from which end to work on. Limit the amount that can be spent or limit the amount that can be given but as long as it is the same for everyone, corp or individual, there should be some recourse to reasonable spending on elections. Of course I don't think you are going to get the media to assist on this because they make so much money from this process.

Better education(not indoctrination) in our schools on civic affairs would do as much to straighten out the money problems as finance reform.

 

[Machaut]

Three-step solution for getting money out of politics:

1. Ban all forms of paid political advertising. If costs money to do, it's illegal; speech is not impacted.

2. Make all races write-in-only. People still file to run for office, and only votes cast for those who have filed count towards the results of an election.

3. Hold televised debates for each position, with every candidate who has filed to run taking part. Make this open to the public the day it is held, and put the video online for Internet accessibility.

The only way to obtain a candidate list under this system would be to watch the debates, which will almost force voters to be at least minimally informed.

 

[theDoctorisIn]

How about making donations from Foreigners Illegal?

"Only US Citizens may donate to Political Parties and the Political, Electoral system. Furthermore, no bundling in any form shall be allowed".

Something like that.

Donations from foreign nationals to political campaigns or parties are already illegal.

 

[theDoctorisIn]

The amendment is a Job Protection Plan for incumbents. The net effect is that individuals will not be able to speak out against incumbents.

It's a horrible idea which invalidates the 1st Amendment.

Incumbents as a rule tend to get a whole lot more "speech" from special interests than their challengers do.

 

[Luddly Neddite]

Until and unless we get big money out of our election process, we will never again have an honest election.

I don't believe that's going to happen.

 

[Machaut]

Until and unless we get big money out of our election process, we will never again have an honest election.

I don't believe that's going to happen.

I agree with your statements, but what do you mean by "an honest election"?

 

[dblack]

Three-step solution for getting money out of politics:

1. Ban all forms of paid political advertising. If costs money to do, it's illegal; speech is not impacted.

2. Make all races write-in-only. People still file to run for office, and only votes cast for those who have filed count towards the results of an election.

3. Hold televised debates for each position, with every candidate who has filed to run taking part. Make this open to the public the day it is held, and put the video online for Internet accessibility.

The only way to obtain a candidate list under this system would be to watch the debates, which will almost force voters to be at least minimally informed.

Is this a parody?

 

[Rikurzhen]

I think you are focusing on the wrong aspects of the problem. Five former heads of the ACLU have sent a letter in support of the constitutional amendment and I find their reasoning persuasive.

Up until Citizen's United, the Supreme Court had relies upon a distinction: measures that prohibited selected or targeted speech were subject to a strict test and would be almost always found unconstitutional. But measures limiting free speech that applied to all speech would be approached with a broader test weighing the government interest in promoting some useful public purpose against the restrictions on the speakers. The classic example is a municipality is allowed to prohibit the use of loudspeakers in public in residential neighborhoods after 10:00 PM at night. The inconvenience to the speaker is less than the right of the citizens to the quiet enjoyment of their property at night and the maintenance of good order. Obviously, as in any balancing test, there will be close decisions, but that is why we have legislatures and courts.

The real question posed by the constitutional amendment is which type of speech is being burdened, and what is the proper standard. I would argue that the speech is clearly of the second type, as the amendment targets an activity engaged in by all parts of the political spectrum. Ted Cruz and Hillary Clinton would be both inconvenienced in raising funds by such restrictions. The argument that one particular candidate, party, or ideology would be more sensitive is an argument ignoring the ephemeral and shifting fortunes of politics.

If the issue is the broader test, not all possible campaign finance laws would meet the balancing test. For example, a $200 limit on all campaign financing donations would probably not meet the test. But in a system where less than 200 donors account for over 60% of all the "black money" given, some limitation could be reasonable.

In a related issue, I do not think that the founders had any interest in protecting anonymous speech. In their era voting was public and everyone in the community knew how every citizen voted. I fail to see much value in public political discourse when the author is hiding behind some organization created solely to make the source of the message opaque. At the least, I believe that if political contributions (including issue ads) are protected speech in any way, the First Amendment allows and good public policy demands accountability by requiring disclosure of the author and the funding source of the speech. Then the public could determine to what extent the message is self-serving.

I disagree with the entirety of your viewpoint because speech, by itself, doesn't translate into influence. I hold conservative viewpoints and I've been inundated with liberal propaganda my entire life. All that money, and all those man-years, that liberal have invested into shaping the opinions of the general public did not translate into influence in my life.

The issue here isn't speech, it's buying influence with politicians.

 

[Rikurzhen]

How about making donations from Foreigners Illegal?

"Only US Citizens may donate to Political Parties and the Political, Electoral system. Furthermore, no bundling in any form shall be allowed".

Something like that.

Donations from foreign nationals to political campaigns or parties are already illegal.

If a law is unenforced then it's worthless. Obama isn't in prison after he accepted foreign donations in 2008 and 2012.

 

[theDoctorisIn]

How about making donations from Foreigners Illegal?

"Only US Citizens may donate to Political Parties and the Political, Electoral system. Furthermore, no bundling in any form shall be allowed".

Something like that.

Donations from foreign nationals to political campaigns or parties are already illegal.

If a law is unenforced then it's worthless. Obama isn't in prison after he accepted foreign donations in 2008 and 2012.

Well, Obama is actually not in prison because there's absolutely no evidence that he did accept any foreign donations.

The law is nearly impossible to enforce, though.