Grassley Floor Statement on the Constitutional Amendment to Limit Free Speech II
Prepared Floor Statement of Senator Chuck Grassley of Iowa
Ranking Member, Senate Judiciary Committee
A Constitutional Amendment to Limit Campaign Speech II
Tuesday, September 9, 2014
Mr./Mm President, the proceedings on the amendment before us show just how broken the Senate is under its current leadership.
The Majority Leader yesterday stated that “we’re going to have a cloture vote to stop debate on this. [Republicans] say well, great, we’ll go ahead and support that because we can stall.”
He also said: “There will be no amendments. Either you’re for campaign spending reform or not. So my Republican colleagues, they can stall for time here.”
This is an Alice in Wonderland, upside-down world the Majority Leader is describing.
You can bet, Mr./Mm President, that if Republicans were blocking Democrats from describing this amendment, we would be accused of obstruction. But when we vote to proceed to the amendment, we are also accused of obstruction. It goes to show that whatever Republicans do, we will be accused of obstruction. That is a Catch-22. That is the majority’s game plan. Bring up partisan measures for political posturing. Avoid working together to solve problems. Blame the other side, no matter what they do. That is why the Senate is broken.
The amendment before us would amend the Bill of Rights for the first time. It would amend one of the most important of those rights, the right to free speech.
The First Amendment provides that Congress shall make no law abridging the freedom of speech. The proposed amendment would give Congress and the states the power to abridge free speech. It would allow them to impose “reasonable” limits, whatever they are, on contributions and expenditures – that is, speech -- influencing elections. And it would allow speech by corporations that would influence elections to be banned altogether.
This amendment is as dangerous as anything Congress could pass.
Were it to be adopted, and I believe that it will not be, the damage done could be reversed only if two thirds of both houses of Congress voted to repeal it through a new constitutional amendment. And three-fourths of the states ratified that new amendment.
So let’s start with First Principles. The Declaration of Independence states that everyone is endowed by their Creator with unalienable rights that governments are created to protect. Those preexisting rights include the right to liberty.
The Constitution was adopted to secure the blessings of liberty to Americans. Americans rejected the view that the structural limits on government power contained in the original Constitution would adequately protect the liberties they had fought a revolution to preserve. So they insisted on the adoption of a Bill of Rights.
The Bill of Rights protects individual rights regardless of whether the government or a majority approves of their use. The First Amendment in the Bill of Rights protects the freedom of speech. That freedom is basic to self-government. Other parts of the Constitution foster equality or justice or representative government. But the Bill of Rights is only about individual freedom.
Free speech creates a marketplace of ideas in which citizens can learn, debate, and persuade fellow citizens on the issues of the day. At its core, it enables the citizenry to be educated to cast votes to elect their leaders.
Today, freedom of speech is threatened as it has not been in many decades. Too many people do not seem to want to listen and debate and persuade. They want to punish, intimidate, and silence those with whom they disagree.
A corporate executive who opposed same sex marriage – the same position that President Obama held at the time – is to be fired. Universities that are supposed to foster academic freedom cancel graduation speeches by speakers that some students find offensive. Government officials order other government officials not to deviate from the party line concerning proposed legislation.
S.J. Res. 19, cut from the same cloth, would amend the Constitution for the first time to diminish an important right of Americans that is contained in the Bill of Rights. In fact, it would cut back on the most important of these rights, core free speech about who should be elected to govern.
The proposed constitutional amendment would enable government to limit funds contributed to candidates and funds spent to influence elections.
That would give the government the ability to limit speech. The amendment would allow the government to set the limit at low levels. There could be little in the way of contributions or election spending. There would be restrictions on public debate on who should be elected. Incumbents would find that outcome to be acceptable. They would know that no challenger could run an effective campaign against them.
What precedent would this amendment create?
Suppose Congress passed limits on what people could spend on abortions or what doctors or hospitals could spend to perform them? What if Congress limited the amount of money people could spend on guns, or to limit how much people could spend of their own money on health care?
Under this amendment, Congress could do what the Citizens United decision rightfully said it could not: make it a criminal offense for the Sierra Club to run an ad urging the public to defeat a congressman who favors logging in the national forests; for the National Rifle Association to publish a book seeking public support for a challenger to a senator who favors a handgun ban; or for the ACLU to post on its website a plea for voters to support a presidential candidate because of his stance on free speech.
Nobody wants a government that powerful that could do the examples, and others, that I just gave.
In fact, at oral argument in Citizens United, the Obama Administration told the Court that it would be legal for a corporation to be prosecuted for publishing a book that expressly advocated for or against the election of a candidate.
The Obama Administration and the Democrat leadership support banning books they don’t agree with. That should be a frightening prospect for us all.
Under this amendment, Congress and the states could limit campaign contributions and expenditures, and without complying with existing constitutional provisions. Congress could pass a law limiting expenditures by Democrats but not by Republicans, by opponents of Obamacare but not by supporters.
And what does the amendment mean when it says that Congress can limit funds spent to influence elections? If an elected official says he or she plans to run again, long before any election, Congress under this amendment could criminalize criticism of that official as spending to influence elections. A senator on the Senate floor, appearing on C-SPAN free of charge, could with immunity defame a private citizen. The member could say that the citizen was buying elections. If the citizen spent what Congress set as too much money to rebut the charge, he could go to jail. We would be back to the days when criticism of elected officials was a criminal offense, as during the Alien and Sedition Acts. And yet its supporters say this amendment is necessary for democracy.
The only existing right that the amendment says it will not harm is freedom of the press. So Congress and the states could limit the speech of anyone except the corporations that control the media. That would produce an Orwellian world in which every speaker is equal but some speakers are more equal than others. Freedom of the press has never been understood to give the media special constitutional rights denied to others.
Even though the amendment by its terms would not affect freedom of the press, I was heartened to read that the largest newspaper in my state, the Des Moines Register, editorialized against the amendment. They cited testimony from the Judiciary Committee hearing. And they recognize the threat that the proposed amendment poses to freedom.
But in light of recent Supreme Court decisions, an amendment soon may not be needed at all. Four justices right now would allow core political speech to be restricted. Were a fifth justice with this view to be appointed, there would be no need to amend the Constitution to cut back on freedom. Justice Breyer’s dissent for these four justices in the McCutcheon decision does not view freedom of speech as an end in itself, as did our Founding Fathers. He thinks free political speech is about advancing “the public’s interest in preserving a democratic order in which collective speech matters.”
To be sure, individual rights often advance socially desirable goals. But our constitutional rights do not depend on whether unelected judges believe they advance democracy as they conceive it. Our constitutional rights are individual, not “collective.” Never in 225 years has any Supreme Court opinion described our rights as “collective.” They come from God and not from the government or the public. So I don’t put much stock in the comment from one Justice, quoted on the floor yesterday, that the Court’s campaign finance decisions are wrong.
Consider the history of the last 100 years. Freedom has flourished where rights belonged to individuals that governments were bound to respect. Where rights were collective, and existed only at the whim of a government that determines when they serve socially desirable purposes, the results have been literally horrific. We should not move even one inch in the direction the liberal justices and this amendment would take us.
The stakes could not be higher for all Americans who value their rights and freedom. Speech concerning who the people’s elected representatives should be; speech setting the agenda for public discourse; speech designed to open and change the minds of our fellow citizens; speech criticizing politicians; and speech challenging government policy are all vital rights. This amendment puts all of them in jeopardy upon penalty of imprisonment. It would make America no longer America.
Contrary to the arguments of its supporters, the amendment would not advance self-government against corruption and the drowning out of the voices of ordinary citizens. Just the opposite. It would harm the rights of ordinary citizens, individually and in free association, to advance their political views and to elect candidates who support their views. And by limiting campaign speech, it would limit the information that voters receive in deciding how to vote. It would limit the amount that people can spend on advancing what they consider to be the best political ideas.
Its restrictions on speech apply to individuals. Politicians could apply the same rules to individuals that govern corporations. Perhaps individuals cannot be totally prohibited from speaking. But “reasonable” limits can mean anything. Incumbents likely would set a low limit on how much an individual can spend to criticize them. Then the individual will have to risk criminal prosecution in deciding whether to speak, hoping that a court would later find that the limit he or she exceeded was “unreasonable.” That would create not a chilling effect on speech, but a freezing effect. This does not further democratic self-government.
When supporters like the Senator from Illinois say that those who spend money in campaigns silence their critics, they have it exactly backwards. One person speaking does not silence anyone. But the government prosecuting people for speaking does. And my friend said that candidates, unlike individuals and groups, “abide by strict rules on … how much is being spent.” This is simply not so.
That is just factually wrong. The rules are the same.
The First Amendment requires that candidates be able to spend as much as they want. And that is true for individuals and corporations and unions as well. Individuals are limited in current law on how much they can contribute to candidates. Corporations cannot contribute to candidates at all.
The rules for expenditures are different. Candidate expenditures are expenditures by others independent of the candidate are unlimited because they are simply free expression. Individuals and corporations cannot and do not make unlimited campaign contributions under current law.
My friend also discussed fraud in voting, which he says does not exist, and opposed voter ID laws. The amendment before us has nothing to do with voting. And even if it did, polls consistently show that about 75 percent of Americans support a requirement that voters produce photo identification. Prevention of fraud is just common sense. And voter fraud exists, despite the tactic of voter ID opponents repeating over and over that it does not. In Iowa, there have been successful prosecutions for in-person voter fraud. In North Carolina recently, 765 registered voters appeared, based on their names, birthdates, and last four digits of their Social Security numbers, to have voted in another state. That certainly warrants investigation.
We would have more evidence of voter fraud if the Obama Administration did not block efforts to prosecute its existence. When Florida sought from the Department of Homeland Security a list of non-citizens that it could compare against its voter rolls, the Department refused to supply it.
So let’s turn back to the amendment before us, which affects only free speech rights, not voting rights. The amendment would apply to some campaign speech that cannot give rise to corruption. As my friend from Illinois stated, under current law, an individual could spend any amount of his or her own money to run for office. But an individual could not corrupt himself by his own money and could not be bought by others if he or she did not rely on outside money. Yet the amendment would allow Congress and the states to strictly limit what an individual could contribute to or spend on his or her own campaign. That would make beating the incumbents who would benefit from the new powers to restrict speech much more difficult.
In practice, individuals seeking to elect candidates in the democratic process must exercise their First Amendment freedom of association to work together with others. This amendment could prohibit that altogether. It would permit Congress and the states to prohibit “corporations or artificial entities … from spending money to influence elections.” That means unions. That means nonprofit corporations like the NAACP Legal and Educational Defense Fund, Inc. That means political parties. The amendment would allow Congress to prohibit political parties from spending money to influence elections. If they can’t spend money on elections, then they would be rendered as mere social clubs.
The prohibition on political spending by for-profit corporations also does not advance democracy. Were this amendment to take effect, a company that wanted to advertise beer or deodorant would be given more constitutional protection than a corporation of any kind that wanted to influence an election.
The philosophy of the amendment is elitist. It says the ordinary citizen cannot be trusted to listen to political arguments and evaluate which ones are persuasive. Instead, incumbent politicians interested in securing their own reelections are trusted to be high-minded. Surely, they would not use this new power to develop rules that could silence not only their actual opposing candidates, but associations of ordinary citizens who have the nerve to want to vote them out of office.
As First Amendment luminary Floyd Abrams told the committee, “[P]ermitting unlimited expenditures from virtually all parties leads to more speech from more candidates for longer time periods, and ultimately to more competitive elections.” Incumbents are unlikely to use this new power to welcome that competition.
In fact, the committee report indicates that state and federal legislators are not the only people who would have the ability to limit campaign speech under the amendment. It says that the states and the federal government can promulgate regulations to enforce the amendment. So unelected state and federal bureaucrats, who do not answer to anyone, would be empowered to regulate what is now the freedom of speech for individuals and entities that is now protected by the Bill of Rights. That makes a mockery of the idea that this proposed amendment would advance democracy.
Another argument for the amendment -- some voices should not drown out others -- also runs counter to free speech. And it is also elitist. It assumes that voters will be manipulated into voting against their interests because large sums will produce so much speech as to drown out others and blind them to the voters’ true interests. Tell that to the voters in Virginia’s Seventh Congressional District. The incumbent Congressman outspent his opponent 26-1. Newspaper reports state that large sums were spent on independent expenditures on the incumbent’s behalf, many by corporations. No independent expenditures were made for his opponent. His opponent won. That’s some drowning out. That’s some undue influence.
The winner of that primary spent just over $200,000 to win 55 percent of the vote. Since a limit that allowed a challenger to win would presumably be “reasonable” under the amendment, Congress or the states could limit spending on House primaries to as little as $200,000, all by the candidate, with no obviously unnecessary outside spending allowed.
The second set of unpersuasive arguments concerns Citizens United. That case has been mischaracterized as “activist.” As Mr. Abrams testified, that case continues a view of free speech rights by unions and corporations that was expressed by President Truman and by liberal Justices in the 1950s. What Citizens United overruled was the departure from precedent. And Citizens United did not give rise to unfettered campaign spending. The Supreme Court in 1976, in Buckley v. Valeo, ruled that independent expenditures could not be limited. That decision was not the work of supposed conservative judicial activists. Wealthy individuals have been able to spend unlimited amounts since then. And corporations and others have been able to make unlimited donations to 501(c)(4) corporations since then as well.
As Mr. Abrams wrote to the Judiciary Committee in questions for the record, “What Citizens United did do, however, is permit corporations to contribute to PACs that are required to disclose all donors and engage only in independent expenditures. “If anything, Citizens United is a pro-disclosure ruling which brought corporate money further into the light.”
So I do not think my colleagues are correct in saying that this amendment is about so-called “dark money.” And limiting speech is totally separate from disclosure of speech. This amendment says nothing about disclosure. And it is the amendment, not Citizens United, that fails to respect precedent.
It does not simply overturn one case. As Mr. Abrams responded, it overturns 12 cases, some of which date back almost 40 years. As the amendment has been redrafted, it may be 11 ½ now, depending on what “reasonable” means.
Justice Stevens, whom the Committee Democrats relied on at length in support of the amendment, voted with the majority in three of the cases the amendment would overturn. Some members of the Committee may not like the long established broad protections for free speech that the Supreme Court has reaffirmed. But that does not mean there are 5 activists on the Supreme Court. The Court ruled unanimously in more cases this year than it has in 60 or 75 years, depending on whose figures you use. Its unanimity was frequently demonstrated in rejecting arguments of the Obama Administration.
Mr./Mm President, I have made clear that this amendment abridges fundamental freedoms that are the birthright of Americans. The arguments made to support it are unconvincing. The amendment will weaken, not strengthen democracy. It will not reduce corruption, but will open the door for elected officials to bend democracy’s rules to benefit themselves.
The fact that the Senate is considering such a dreadful amendment is a great testament to the wisdom of our Founding Fathers in insisting on and adopting a Bill of Rights in the first place. As Justice Jackson famously wrote, “The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts.
“One’s right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections.”
We must preserve our Bill of Rights including our rights to free speech. We must not allow officials to diminish and ration that right. We must not let this proposal become the supreme law of the land.