Patrick Leahy. (Photo: Diego M. Radzinschi / NLJ.)
The U.S. Supreme Court drew heavy but familiar criticism from federal lawmakers Tuesday as Democrats pressed forward with a constitutional amendment to undo the high court’s rulings in campaign finance cases.
The gallery of one of the U.S. Capitol’s largest hearing rooms was filled for a Senate Judiciary Committee hearing on campaign finance reform. The amendment proposed by Sen. Tom Udall, D-N.M. would give Congress and states greater authority to regulate campaign finance.
The debate centered on the amendment’s aim to overturn the high court’s recent decision in McCutcheon v. Federal Election Commission, which struck limits on aggregate campaign contributions. The amendment would also undo Supreme Court rulings in Buckley v. Valeo and Citizens United v. Federal Election Commission.
“Five justices have now repeatedly overturned these common sense and time-honored protections” of limiting the influence of the wealthy and special interests in elections, said Sen. Patrick Leahy, D-Vt., the Judiciary Committee chairman.
“I have long been wary of attempts to change the constitution because I have seen so many, hundreds of proposals, to amend the constitution, used like bumper stickers, merely to score political points,” Leahy said. “But because the Supreme Court based its rulings on a flawed interpretation of the First Amendment, a statutory fix alone will not suffice.”
Sen. Chuck Grassley, R-Iowa, an opponent of the amendment, focused on the fragility of the majority in the 5-4 ruling in McCutcheon. “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,” Grassley said.
“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,” Grassley said. “He thinks free political speech is about advancing ‘the public’s interest in preserving a democratic order in which collective speech matters.’ “
Constitutional rights do not depend on “whether unelected judges believe they advance democracy as they conceive it,” Grassley said. “Never in 225 years has any Supreme Court opinion described our rights as ‘collective.’ “
After Grassley spoke, Leahy retorted that he appreciated what Grassley said about the Supreme Court. “Who knows, someday we’ll have Supreme Court justices who actually follow the precedents that they swore under oath during their confirmation hearing they would follow,” Leahy said.
Floyd Abrams, the longtime First Amendment lawyer at Cahill Gordon & Reindel, told the committee that no constitutional amendment has ever overruled a Supreme Court ruling that concluded speech warranted protection.
“If the First Amendment protects flag burning, funeral protests and Nazi parades, despite the profound offense that such spectacles cause, then surely it protects political campaign speech, despite popular opposition,” said Abrams, who testified in opposition to the amendment.
Passing the amendment would mean “years and years of litigation,” Abrams said. “I don’t mind that,” he added.
Abrams also said he thought contribution limits ought to fall. “We’ve reached a point both in our jurisprudence and our politics where if we know what the money is, and where the money’s coming from, then I think we can trust the public to make a rational decision,” Abrams said.
He also took issue with the name of Tuesday’s committee hearing, “Examining a Constitutional Amendment to Restore Democracy to the American People,” calling it a perversion of the English language. “It is deeply profoundly obviously undemocratic to limit speech about who to elect to public office,” Abrams said.
Sen. Sheldon Whitehouse, D-R.I., said polls show Americans believe this Supreme Court favors corporations over individuals.
“We’re trying to repair an erroneous decision by the Supreme Court, a decision that is likely to end up in the category of Lochner and Plessy as really embarrassing moments in the history of the court,” Whitehouse said.
The hearing also included rare dueling testimony from amendment supporter Senate Majority Leader Harry Reid, D-Nev., and opponent Senate Minority Leader Mitch McConnell, R-Ky.
“The decisions of the Supreme Court have left the American people with a status quo in which one side’s billionaires are pitted against the other side’s billionaires,” Reid testified. “So we sit here today faced with a simple choice: We can keep the status quo and argue all day about whose billionaires are right—or, we can work together to change the system, to get this shady money out of our democracy and restore the basic principle of one American, one vote,” Reid said.
McConnell called the amendment “incredibly bad” and dismissed it as a political exercise. “Everybody knows this proposal will never pass Congress,” McConnell said. “The First Amendment is about empowering the people, not the government. The proposed amendment has it exactly backwards.”