On May 14, Senate Majority Leader Harry Reid (D-Nev.; shown in photo) threw his weight behind the resolution, saying: “We’re going to push a constitutional amendment so we can limit spending because what is going on today is awful.”
However, the resolution is not the only threat to the freedom of speech necessary to support our traditional electoral process. A number of organizations, including Call a Convention and Wolf-PAC., are working to convince state legislators to apply for an Article V constitutional convention. Among the amendments such groups seek to propose is one that would "end corporate personhood and publicly finance all elections in our country.” The goals of these organizations dovetail neatly with the objective of S .J. Res. 19, as both the resolution and the Article V groups seek to amend the Constitution to negate the Supreme Court’s Citizens United decision, which ruled that the First Amendment prohibits the federal government from restricting political campaign financing by corporations, associations, and interest groups.
In that May interview, Reid revealed what motivated him to get so strongly behind the resolution, introduced in the Senate by Sen. Tom Udall (D-N.M.) and in the House by Rep. James McGovern (D-Mass.) The Nevada senator had become disenchanted with the electoral process. In 1998, Reid barely won reelection (428 votes) in a race against Republican Rep. John Ensign and blamed “corporate money” spent on the campaign for the closeness of the vote, after he had easily won reelection in 1992.
The 1998 Nevada Senate election is a perfect example of an electoral principle: The lack of restrictions on campaign spending tends to work in favor of challengers and against incumbents. It is little wonder that Floyd Abrams, a renowned constitutional law attorney who has argued many First Amendment cases before the Supreme Court, noted in a statement before the Senate Judiciary Committee hearing regarding S. J. Res. 19 on June 3:
There is another pervasive problem with the proposed amendment. S. J. 19 is rooted in the disturbing concept that those who hold office in both federal and state legislatures, armed with all the advantages of incumbency, may effectively prevent their opponents from becoming known to the public, by adopting legislation, which the proposed amendment would empower them to do, limiting the total amounts they may raise and spend in an effort to do so. Put another way, the amendment will create countless David versus Goliath bouts, with Goliath allowed to make up the rules of the game as it goes along.
During his testimony, Abrams quoted a statement from Justice Antonin Scalia, who observed:
As everyone knows ... evenhandedness is not fairness. If all electioneering were evenhandedly prohibited, incumbents would have an enormous advantage. Likewise, if incumbents and challengers are limited to the same quantity of electioneering, incumbents are favored. In other words, any restriction upon a type of campaign speech that is equally available to challengers and incumbents tends to favor incumbents.”
After his close call, Reid joyfully recalled that things had changed for the good, at least for his good, by 2004: “I felt so clean and pure with McCain-Feingold, which had come into being, it was wonderful. We were back where we should have been,” he said. With the new campaign finance restrictions in place, Reid won reelection with 61 percent of the vote.
McCain-Feingold (the Bipartisan Campaign Reform Act of 2002, which won eventual passage as the House version, Shays-Meehan) placed stringent restrictions on campaign contributions by interest groups and other organizations.
Reid showed his hand openly when he bemoaned the Supreme Court’s 2010 Citizens United v. Federal Election Commission ruling, which held that the First Amendment prohibits the federal government from restricting political independent expenditures by corporations, associations, and labor unions. Justice Kennedy stated in the majority opinion: The majority wrote, "If the First Amendment has any force, it prohibits Congress from fining or jailing citizens, or associations of citizens, for simply engaging in political speech."
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Photo of Sen. Harry Reid: AP Images