Joel Fox raises a good point about the California Legislature’s request to Congress to propose the first amendment of the venerable First Amendment in our history: Will the proposed amendment allow the federal government and State governments to restrict corporate contributions and expenditures related to ballot measures?
The Legislative resolution referring to candidates and ballot measures is not specific about the scope of the proposed constitutional amendment, and doesn’t contain the actual language of the proposed constitutional amendment.
My reading of the version of the proposed amendment that passed the U.S. Senate judiciary committee a few weeks ago is that it would give Congress and the States extremely broad authority to regulate campaign finance and doesn’t limit that grant of authority only to regulation of candidate campaigns.
While the proposed amendment specifically addresses the Citizens United issue (permitting Congress and the States to prohibit entirely or substantially limit corporate independent expenditures concerning candidates), it does not exclude State regulation of ballot measure contributions or spending by corporations or other donors. See the language below allowing regulation that includes limits on contributions and expenditures in candidate campaign, which does not say that this regulatory authority is “limited” as to any other subjects (such as ballot measures, corporations, etc.) Such regulation would go well beyond reversing Citizens United, and could substantially reduce everyone’s political liberties
Section 2 of the proposed Amendment currently reads:
A State shall have power to regulate the raising and spending of money and in kind equivalents with respect to State elections, including through setting
(1) the amount of contributions to candidates for nomination for election to, or for election to, State office; and
(2) the amount of expenditures that may be made by, in support of, or in opposition to such candidates.
The State of California and most local jurisdictions within the State have operated without difficulty under “Citizens United rules” since the first campaign regulations were enacted in 1974. Even before Citizens United, California corporations could spend money on candidate independent expenditures, and only a few local jurisdictions tried to limit contributions to independent expenditure committees.
A host of pre- Citizens United U.S. Supreme Court rulings struck down the kinds of corporate contribution and spending limits the proposed amendment would allow States to impose.
The Supreme Court held unconstitutional (a) limits on independent expenditures concerning candidates (Buckley v. Valeo), (b) prohibitions of corporate spending on ballot measures (First Nat’l Bank of Boston v. Bellotti), (c) limits on contributions to ballot measure committees (Citizens Against Rent Control v. Berkeley), (d) and independent expenditures for federal candidates by corporations and unions (Citizens United). Only once has a Supreme Court decision permitted prohibitions on corporate independent spending on ballot measures (Michigan Chamber of Commerce), and that decision was overruled by Citizens United. After Citizens United, the federal DC Circuit in SpeechNow.or, invalidated limits on contributions by corporations and others to independent expenditure committees, and two 9th Circuit decisions invalidated Long Beach’s and San Diego’s local limits on contributions to independent expenditure committees in connection with candidate campaigns.
While the California Legislature’s petition, and the proposed amendment considered by the U.S. Senate, stand absolutely no chance of success, given the arduous path the Constitution’s Framers imposed on such proposals and the current political divisions, we should all take pause to reflect whether the present ardor to amend the First Amendment (“Congress shall make no law respecting… abridging the freedom of speech, or of the press… .”) for the first time, is just a symptom of the current political distemper, demonstrating little regard for terrible impacts on the freedoms we all enjoy.