Judiciary Executive Business Meeting: Cellphone Unlocking Bill, Constitutional Amendment Limiting Free Speech
Prepared Statement of Senator Chuck Grassley
Ranking Member, Senate Judiciary Committee
Executive Business Meeting
Pamela Harris, to be United States Circuit Judge for the Fourth Circuit
Pamela Pepper, to be United States District Judge for the Eastern District of Wisconsin
Brenda K. Sannes, to be United States District Judge for the Northern District of New York
Patricia M. McCarthy, to be a Judge of the United States Court of Federal Claims
Jeri Kaylene Somers, to be a Judge of the United States Court of Federal Claims
S. 517, Unlocking Consumer Choice and Wireless Competition Act
S.J. Res. 19, A joint resolution proposing an amendment to the Constitution of the United States relating to contributions and expenditures intended to affect elections
Thursday, July 10, 2014
Mr. Chairman, all of the nominees are appearing on the agenda for the first time and we have a request on our side to hold them over. We’re ready to consider the two legislative items – the cellphone unlocking bill and the constitutional amendment. However, let me say a few words on another issue before we start working on today’s agenda items.
I’d like to inform my colleagues that the Attorney General hasn’t responded to my request to disclose the advice that Office of Legal Counsel gave to the Obama Administration about the release of five senior Taliban commanders from Guantanamo Bay.
Administration officials have already testified about this advice, which supposedly justified President Obama’s violation of the law requiring a detailed notification to Congress 30 days before such releases occur.
It’s especially important that this advice be made public in this instance. In the days after we learned that the 5 detainees had been released, the factual circumstances that the administration used to justify its actions shifted on an almost daily basis. At this point, some of those justifications have all been abandoned. Why?
I asked the Attorney General to reply by June 19, but he hasn’t done so. I hope to get an answer soon. But the President continues to fail to make good on his promise that this would be the most transparent administration in history.
With respect to today’s committee agenda, I’m pleased to join Chairman Leahy and others in sponsoring S. 517, the Unlocking Consumer Choice and Wireless Competition Act. This bill will help address the issue of whether cellphone users should be able to “unlock” their devices once they’ve complied with the original contract terms of service so they can switch to a new wireless carrier. Ease in portability of devices would allow for more competition and consumer choice. I’ve worked with the Chairman to address concerns with the bill, and now everyone is on board with the language in the substitute amendment. I’m not aware of any opposition to the substitute, so I hope that we can move quickly on this bill since it is non-controversial.
S.J. Res. 19
Mr. Chairman, at the hearing on this amendment, I made the case why we should not amend the Bill of Rights for the first time to eliminate protection for core political speech. I mentioned that by limiting spending, the amendment would allow the government to limit speech. It would allow the imposition of criminal punishment for spending money to influence debate on issues of importance to self-government.
As I said then, by criminalizing speech intended to influence elections, such as speech criticizing elected officials, it would effectively reenact the Alien and Sedition Acts. The amendment represents a radical threat to constitutional rights.
Those rights are and have always been individual rights. But four Supreme Court Justices wrote in the McCutcheon case that political speech is a “collective” right. No Justice in our history, never mind four, has ever said that free speech or any other rights in the Bill of Rights are “collective.”
We should not move one inch in that direction.
The rights contained in the Bill of Rights come from God and not from the government or the public. The Bill of Rights protects individual rights against collective action.
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 establish a slippery slope that would pose a threat to other rights contained in the Bill of Rights. It would make America no longer America and it must be stopped.
What I would like to do today is address the two main arguments that proponents have raised in support of the amendment. These are (1) it is needed to advance self-government against corruption and the drowning out of the voices of ordinary citizens; and (2) the need to overturn Citizens United, a supposedly activist decision from a supposedly activist Supreme Court.
Other arguments have been raised in passing that I expect will come up today.
For instance, arguments that denigrate the existing, longstanding protection of core political speech as against unprotected expression such as child pornography, or other categories of speech that are subject to reasonableness or balancing tests.
I asked First Amendment expert Floyd Abrams, a witness at our hearing, to address those arguments in questions for the record. I commend to everyone his excellent responses.
This amendment will not advance self-government or protect the political process from corruption.
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.
It applies to individuals.
The amendment says that Congress and the states “may distinguish between natural persons and corporations,” but nothing requires that they do so. Politicians can 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.
Instead of the government being the servant to the people, the people would be the servant to the government.
The amendment would apply to some campaign speech that cannot give rise to corruption. For instance, under current law, an individual could spend any amount of his or her own money to run for office. 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.
A member of this committee for many years, Senator Kohl, made this argument to his constituents. Were this amendment part of the Constitution, a future Senator Kohl would be limited in what he could contribute to his campaign and how much he could spend.
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 and artificial entities … from spending money to influence elections.”
That means unions. That means nonprofit corporations like the NAACP Legal and Educational Defense Fund, Inc., which testified before the committee on a different matter last month.
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 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 Mr. Abrams wrote, “[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. Yet the amendment also presumes that these same politicians are unprincipled and cowardly. They supposedly will not defend for principle if anyone can run ads against them. They supposedly lack the capacity to state their views in a way that will enable others to adequately support their candidacy in the light of opposition. Actual limits on free speech are supposedly justified on potential threats that no politician will be able to expose or withstand or use to rally the voters.
The second 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,” 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 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.”
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 11½ now, depending on what “reasonable” means.
Justice Stevens, whom we will probably hear much about today, voted with the majority in three of the cases the amendment would overturn. 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. Chairman, 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 open the door for elected officials to bend democracy’s rules to benefit themselves.
The fact that the Committee is taking up this amendment at all, and regrettably appears to be on the verge of adopting it, 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.