Ever since Sen. Tom Udall, D-N.M., proposed a constitutional amendment designed to restore to Congress and state governments the ability to regulate the raising and spending of money in elections, Republicans and conservatives have absurdly been decrying it as an effort to gut the First Amendment.
On today’s “WallBuilders Live” radio program, David Barton attacked Senate Majority Leader Harry Reid for supporting this amendment, saying that his support for it proves that Reid is “an atheist Mormon” who doesn’t realize that he will one day have to answer to God for trampling all over our God-given rights:
Barton: He has actually proposed an amendment to the U.S. Constitution that would re-write the First Amendment to take away original protections and limit the protections in the First Amendment.
What it also tells me is, and he’s apparently a Mormon guy, that’s fine. He is probably an atheist Mormon, Mormon in name only and the reason I say that is that so many Mormon folks are so conservative on the Constitution and such great defenders … And so, when you look at what he’s doing, the Bill of Rights is laid out in the Declaration of Independence, you start with the first belief that there’s a Creator, the second belief that the Creator gives us certain inalienable rights, the third belief in the Declaration is that government exists to protect those rights inalienable rights.
So eleven years later when the Founding Fathers did the Bill of Rights they said, hey, these are those rights that we were talking about that the government is not allowed to touch because these come from the Creator and government exists to protect rights from the Creator. So that’s why we’ve never messed with the Bill of Rights because they were always off limits to government because they came from God directly to man, they did not go through government to get here.
If you don’t have the belief that you will answer to God for what you do, you will sell your country, you will sell your kids’ future, you will sell everything going on and that’s where we’re getting. And so it’s not just a belief in God, it’s the belief that you answer to God and you believe that, and see that’s where Harry Reid is not. You know, he may believe in God, he probably says he does; I don’t think he has any cognizance of having to answer to God for what he does.
On what planet is Sen. Majority Leader Harry Reid an “atheist Mormon?”
It was largely off their radar, that is, until this week. This morning, the Senate Judiciary Committee held a hearing on a proposal by Sen. Tom Udall, D-N.M., to send a constitutional amendment to the states restoring to Congress and state governments the ability to regulate the raising and spending of money in elections. In response, Republican politicians and conservative activists have kicked into gear and are starting to try out new talking points to get their movement to oppose efforts to lessen the influence of big money in politics.
Burchfield and McGahn both argued that the introduction of the constitutional amendment means, in the words of McGahn, that campaign finance law advocates are “admitting” that campaign finance regulations are “unconstitutional.”
On the surface, this is the opposition’s strongest argument, because it sounds so scary. But it’s just not true. Whether you support the Udall amendment or not, it’s dishonest to suggest that it would amount to a “repeal of the First Amendment.” Instead, proponents argue that it strengthens the First Amendment by undoing the Supreme Court’s jurisprudence declaring that spending on elections, including from corporate treasuries, cannot be limited. Proponents of the Udall amendment hold that this jurisprudence, including recent decisions in the Citizens United and McCutcheon cases, represented a radical reinterpretation of the First Amendment; undoing them would simply re-establish the ability of Congress and the states to set reasonable regulations on the raising and spending of money to influence elections.
2.Amendment supporters want to ‘silence critics’ and ‘cling to power’!
The Heritage panelists repeatedly claimed that the Udall amendment is an attempt to protect incumbency by preventing challengers from raising enough money to win elections. McGahn insisted that it was an effort by Democratic incumbents “desperately clinging to power.”
“They want to change the rules of the game and prevent people from criticizing them, not unlike England did before our revolution, and which led to our revolution,” he added.
The American Family Association’s Sandy Rios also invoked the American Revolution in an interview with von Spakovsky yesterday, saying, “The First Amendment, the rights to free speech – particularly the right to political speech – were the right to criticize the king, criticize the authorities over you.”
In a later interview with Rios, Tea Party Patriots spokesman Scott Hogenson even managed to connect the Udall amendment with immigration reform, claiming that both are part of a “larger, concerted effort to maintain the Democratic Party’s control of American politics and eventually move to one-party rule.”
In reality, it’s unlimited campaign spending that tends to be a boon for incumbents, who on average are able to raise far more than challengers. For instance, in Texas, a state with few campaign finance limits, incumbents who win on average raise more than twelve times the average amount raised by challengers. By contrast, in Colorado, which has relatively low individual contribution limits, incumbents on average raise less than three times what challengers are able to raise [pdf].
3.Liberals just want to protect the lame-stream media!
Von Spakovsky also played up conservative conspiracy theories about the “liberal media,” telling Rios, “No surprise, there’s a glaring exception in this proposed amendment for the press. And that means that MSNBC or the New York Times Company, which are big corporations, they could spend as much newsprint or airtime as they wanted going after and criticizing candidates or talking about political issues.”
These arguments fail to recognize one key distinction, which is that there is a difference between the New York Times publishing an editorial (which would be protected under the proposed amendment, as it is now) and the corporate managers of the New York Times taking $50 million out of their corporate treasury to buy ads to influence an election (which would not be protected).
It’s no coincidence that Cruz rolled out his criticism of the Udall proposal at a pastors’ event organized by the Family Research Council, a main theme of which was the supposed assault on the religious liberty of Christians in America. Cruz told the pastors that the Udall measure would “muzzle” clergy and was being proposed because “they don’t like it when pastors in their community stand up and speak the truth.”
Likewise, McGahn said at the Heritage event that the amendment would endanger the religious liberty of clergy: “What about pastors and churches? This is an issue that comes up once in a while. Can the government get in there and tell a priest he can’t talk to his congregation because it may somehow have something to do with politics?”
This might be true if the proposal would, in fact, “repeal the First Amendment.” In fact, the First Amendment’s protection of religious liberty would remain in place.
Of course, that didn’t stop the FRC’s Tony Perkins from somehow linking the Udall amendment to the imprisonment of a Christian woman in Sudan:
5.It’s like the Alien & Sedition Acts!
Along with comparisons to British control before the American Revolution, amendment opponents are trying to link the Udall proposal to the 18th century Alien & Sedition Acts.
In his interview with Rios yesterday, van Spakovsky claimed that “the last time Congress tried to do something like this was when they passed the Alien & Sedition Act in 1798 that criminalized criticism of the government.” Multiple GOP senators at today’s hearing, including Judiciary Committeee Ranking Member Chuck Grassley, repeated the talking point.
Of course, the amendment does nothing to reduce the right of individuals to criticize the government or politicians.
6.The polls are skewed!
When an audience member at yesterday’s Heritage Foundation panel asked about polls showing overwhelming opposition to the Citizens United decision, McGahn replied that the questions in the polls were “skewed.”
You can judge for yourself whether this question from a recent Greenberg Quinlan Rosner poll – which found 80 percent opposition to the Citizens United decision – is “skewed” on behalf of campaign finance law proponents:
In one of the least self-aware moments we’ve witnessed in the last few days, McGahn told the Heritage audience that campaign finance reform proponents could have just worked for tougher disclosure requirements, which the Supreme Court’s majority has consistently endorsed as a way to prevent corruption:
What’s interesting is the courts have upheld some disclosure of independent speech, which six months ago was supposed to be the answer, a year ago was supposed to be the answer – remember the DISCLOSE Act, Part 1 and Part 2? Well, that was supposed to cure all the ills in our democracy, but unfortunately I guess they’ve given up on that and they’ve moved to the more radical change, which is the constitutional amendment.
Speaking to the Heritage audience, Burchfield presented the curious argument that the Udall amendment would demand to “equalize debate among the haves and have-nots,” and since “the portion is small” of “those with limited means” who participate in electoral debates, this would require “severe restrictions.”
The rich do not advocate a single viewpoint. Think of Sheldon Adelson and George Soros, they don’t agree on anything. There are strong voices on the left and on the right, not just in privately funded campaign advertisements, but also in the broadcast and print media. Only a small portion of those with significant resources even bother to participate in the debate. And among those with limited means, the portion is small indeed. In order to equalize debate among the haves and the have-nots, severe restrictions would be necessary. The quantity and quality of discourse would certainly suffer.
The amendment under consideration doesn’t require that everybody be heard an equal amount; instead, it gives Congress and the states the ability to create a more even platform for those who wish to be heard, regardless of their financial means.
Inevitably, anti-amendment activists have begun invoking the right-wing bogey-man Saul Alinsky.
Hogenson told Rios that the Udall amendment is “just taken right out of Saul Alinksy’s book, ‘Rules for Radicals,’ it just makes up a gigantic lie and perpetuates it, that somehow democracy needs to be restored.”
Von Spakovsky also invoked Alinsky in his interview with Rios, claiming that criticism of the enormous political spending of the Koch brothers is an Alinskyite plot: “What’s really going on here is, look, if you look at Alinsky’s ‘Rules for Radicals,’ one of the rules that he sets out is you pick a villain and you basically blame those villains for all of the problems. It’s a way of distracting the public, it’s a way of diverting attention, and that’s exactly what Harry Reid and the Democrats are doing here.”
WASHINGTON — Senate Majority Leader Harry Reid (D-Nev.) pulled the trigger Thursday, deploying a parliamentary procedure dubbed the “nuclear option” to change Senate rules to pass most executive and judicial nominees by a simple majority vote.
The Senate voted 52 to 48 for the move, with just three Democrats declining to go along with the rarely used maneuver.
From now until the Senate passes a new rule, executive branch nominees and judges nominated for all courts except the Supreme Court will be able to pass off the floor and take their seats on the bench with the approval of a simple majority of senators. They will no longer have to jump the traditional hurdle of 60 votes, which has increasingly proven a barrier to confirmation during the Obama administration.
Reid opened debate in the morning by saying that it has become “so, so very obvious” that the Senate is broken and in need of rules reform. He rolled through a series of statistics intended to demonstrate that the level of obstruction under President Barack Obama outpaced any historical precedent.
Half the nominees filibustered in the history of the United States were blocked by Republicans during the Obama administration; of 23 district court nominees filibustered in U.S. history, 20 were Obama’s nominees; and even judges that have broad bipartisan support have had to wait nearly 100 days longer, on average, than President George W. Bush’s nominees.
"It’s time to change before this institution becomes obsolete," Reid said, before citing scripture — "One must not break his word" — in accusing Minority Leader McConnell (R-Ky.) of breaking his promise to work in a more bipartisan fashion.
McConnell responded to Reid by changing the subject to the Affordable Care Act and accusing Democrats of trying to distract Americans from the law’s troubled rollout. Getting around to fidelity, McConnell noted that Reid had said in July that “we’re not touching judges,” yet he was now choosing to do so. Reid casually brushed off his suit coat and sat down.
McConnell compared the alleged duplicity to another Democratic piece of rhetoric. “If you like the rules of the Senate, you can keep them,” he quipped, as the GOP side laughed heartily, which encouraged a pleased McConnell to turn directly to his colleagues and repeat the joke.
He then turned to the Democratic side and said he understood why inexperienced young members who’d never been in the minority might want to change the rules. “The rest of you guys in the conference should know better,” he said.
Obstruction, McConnell said, began with the Democrats when they decided to filibuster Circuit Court nominees under Bush. “They made it up. They started it,” he said, arguing that Republicans were only following their lead. His argument, though, raises the question of why eliminating the filibuster on such judges, if it was never used before 2000, should be seen as an historic development in the first place.
"Stop trying to jam us," McConnell said, warning that it would come back to haunt them. "You may regret it a lot sooner than you think."
Normally rules changes in the Senate need 67 votes, but the majority can challenge an existing rule, and if the presiding senator rules against the challenge, the majority can then ask for a vote on the chair’s ruling. If a simple majority votes to overrule the chair, it sets a new precedent.
Sens. Carl Levin (D-Mich.), Mark Pryor (D-Ark.) and Joe Manchin (D-W.Va.) broke with their party and joined Republicans in opposing the move. Pryor is in an uphill reelection contest, which may explain his vote, but Sens. Mary Landrieu (D-La.) and Mark Begich (D-Alaska), who are also top GOP targets in 2014, backed the rules change.
Levin, a Senate traditionalist, has long been the most outspoken opponent of rules reform, and led a successful effort to stymie the movement earlier this year. Manchin, meanwhile, has great reverence for the late Sen. Robert Byrd (D-W.Va.), a fierce champion of Senate tradition, likely explaining his vote. (Byrd did make several attempts to change the rules himself when he served as majority leader.)
Sen. Jack Reed (D-R.I.), who has long been skeptical of changing the rules, cast a critical vote very late in the process supporting the move. That left Sen. Barbara Boxer (D-Calif.), a recent convert to reform, to cast the 51st vote, with Reid casting the 52nd.
The move marks a significant win for the newer crop of Democrats — like Oregon Sen. Jeff Merkley, the lead proponent of going nuclear — who have grown increasingly frustrated as McConnell expertly employed parliamentary procedures to stall Democratic nominees and initiatives. Sens. Tom Harkin (D-Iowa) and Tom Udall (D-N.M.) have also been longtime champions of filibuster reform, with Harkin’s effort dating back more than two decades.
Sen. Orrin Hatch (R-Utah), who chaired the Judiciary Committee back when it was Democrats trying to stall Bush’s nominees, echoed McConnell, suggesting newer Democrats such as Merkley, who have never been in the minority, were not taking the long view.
“Normally the majority party has a right to determine the agenda of the Senate. They don’t have the right to pass bills. That’s up to the majority of the Senate,” Udall said on the floor Wednesday. “But then the majority leader should have the right to bring a bill to the floor of the Senate. And that has been denied over and over again by the minority party. That’s wrong.”
The dueling proposal, spearheaded by longtime Sens. John McCain (R-AZ) and Carl Levin (D-MI), would make it somewhat tougher for the minority to block debate on legislation but also guarantee them two amendments on bills — regardless of relevancy — which proponents of a weaker filibuster say defeats the purpose.
“It’s a step backward rather than a step forward,” a Merkley aide said. “It doesn’t attack the core of the matter. It doesn’t include a talking filibuster. And it allows the minority to kill legislation with poison pill amendments. It keeps all the tools minority has to obstruct and then gives them another tool.”
Early in December, Senate Majority Leader Harry Reid (D-NV) said filibuster reform will happen with or without Republican support, and Merkley-Udall was the plan on the table. But the unveiling of the McCain-Levin late December — and the optics of a partisan versus bipartisan solution — scrambled the game for reformers.
If Reid decides to pursue McCain-Levin instead of the talking filibuster plan, “Senator Merkley will encourage others to vote against the bill,” his aide said. It’s not yet clear that proposal has the super-majority of votes required to pass, but multiple Democratic senators have said there are at least 51 votes for reform.
One of the overarching themes of the 99 Percent Movement is that our democracy is too corrupted by corporate special interests. This corruption was worsened last year by the Supreme Court’s Citizens United decision, which allowed for huge new unregulated flows of corporate political spending.
Yesterday, six Democratic senators — Tom Udall (NM), Michael Bennett (CO), Tom Harkin (IA), Dick Durbin (IL), Chuck Schumer (NY), Sheldon Whitehouse (RI), and Jeff Merkely (OR) — introduced a constitutional amendment that would effectively overturn the Citizens United case and restore the ability of Congress to properly regulate the campaign finance system.
The amendment as filed resolves that both Congress and individual states shall have the power to regulate both the amount of contributions made directly to candidates for elected office and “the amount of expenditures that may be made by, in support of, or in opposition to such candidates.”
“By limiting the influence of big money in politics, elections can be more about the voters and their voices, not big money donors and their deep pockets,” said Harkin of the amendment. “We need to have a campaign finance structure that limits the influence of the special interests and restores confidence in our democracy. This amendment goes to the heart of that effort.”
Passing this amendment or any other amendment to the Constitution is an arduous process. There are two ways to propose a constitutional amendment. Either two-thirds of Congress can agree to an amendment or there can be a constitutional amendment called by two-thirds of state legislatures (this path has never been taken). In order to ratify an amendment, three-quarters of state legislatures must agree or three-quarters of states must have individual constitutional conventions that agree.