Lawmakers, a retired Supreme Court Justice and campaign-finance lawyers and experts addressed the question at a Senate Rules Committee hearing today, a few weeks after the Supreme Court invalidated limits on the total amount of money that individuals can give directly to federal candidates and political parties.
Sen. Pat Roberts of Kansas, ranking Republican on the Rules panel, displayed the text of the First Amendment as he argued against limits.
“Let’s stop this fool’s errand of speech regulation,” said Roberts, adding: “We have nothing to fear from a free marketplace of ideas.”
“Money is and has always been used as a critical tool of speech,” said Sen. Ted Cruz, a Texas Republican eyeing a campaign for the White House in 2016.
Responding to Roberts, New York Democrat Chuck Schumer said there are limits to free speech, noting Oliver Wendell Holmes Jr.’s famous statement in a 1919 Supreme Court opinion that falsely shouting fire in a crowded theater is indefensible.
The First Amendment is “sacred,” though “not absolute,” Schumer said.
“I’m still looking for the word ‘money’ in the First Amendment,” said Norman Ornstein, a scholar with the American Enterprise Institute.
Schumer said the Senate would vote on a constitutional amendment by New Mexico Democrat Tom Udall that would give Congress the power to regulate contributions to candidates and the amount of funds that may be spent.
“We will bring that amendment to the floor shortly, and we will vote on it,” said Schumer, the third-ranking Democratic senator.
John Paul Stevens, a Supreme Court Justice from 1975 to 2010, appeared before the committee to propose his own amendment. It would say that nothing in the Constitution generally or the First Amendment specifically could be construed as prohibiting Congress or any state from imposing “reasonable limits” on the amount of money candidates may spend in election campaigns.
Stevens wrote the dissent in the 2010 Citizens United decision that removed limits on independent corporate and union spending. That decision and subsequent court cases and regulatory rulings led to an explosion in outside political spending by nonprofit groups and super-political action committees.