John Paul Stevens: ‘Money is not speech’

 

Retired Supreme Court Justice John Paul Stevens argued Wednesday that a constitutional amendment is needed to slow the flow of money into politics.

“While money is used to finance speech, money is not speech,” Stevens said in testimony before the Senate Rules Committee.

Stevens, who left the bench in 2010, admonished the high court’s prevailing stance on campaign finance regulations but stopped short of criticizing his former colleagues over a pair of major rulings that critics decry as allowing virtually unbridled spending on federal elections.

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Still, Stevens, who usually sided with the more liberal justices, offered a vigorous argument against Chief Justice John Roberts's court's findings in favor of looser campaign finance regulations, made in deference to free speech protections for both corporations and individual donors.

“Those financial activities should not receive precisely the same constitutional protections as speech itself,” he said. “After all, campaign funds were used to finance the Watergate burglary.”

Stevens did not mention by name the high court’s contentious Citizens United v. FEC and McCutcheon v. FEC decisions that relaxed campaign finance regulations. Rather, he said the court’s central error on campaign finance stems from the 1976 Buckley v. Valeo ruling.

That decision denied Congress the right to impose limits on campaign finance, a provision that Stevens said should be overturned.

He proposed the adoption of a constitutional amendment providing that: “Neither the First Amendment nor any provision of this Constitution shall be construed to prohibit the Congress or any state from imposing reasonable limits on the amount of money that candidates for public office, or their supporters, may spend on election campaigns.”

Constitutional amendments require a two-thirds vote in both chambers of Congress and must be ratified by three quarters of the states.

Republicans on the panel appeared unlikely to embrace the plan, arguing that more stringent campaign finance regulations would impinge on free speech.

“Money is and always has been used as a critical tool of speech,” said Sen. Ted Cruz (R-Texas).

Since the Citizens United decision in 2010, money has flowed to super-PACs and nonprofit groups that operate outside of the party system. Unlimited donations can be made to both types of groups and, in the case of the nonprofit world, without disclosure to the public on who’s giving.

Last month’s McCutcheon ruling wiped away decades-old limits on an individual’s overall campaign contributions for a given election cycle.

In response to those decisions, Senate Democrats announced plans to bring their own constitutional amendment up for a vote this year.

Sen. Charles Schumer, chairman of the Senate Rules Committee, said the amendment would overturn the high court’s contentious decisions that relaxed campaign finance regulations.

“These decisions, and others like them, could result in the end of any fairness in the political system as we know it, and open the door to an era of corruption like we haven’t seen in this country for over a century,” the New York Democrat said Wednesday morning.

The amendment, sponsored by Sen. Tom Udall (D-N.M.), would bolster the Federal Election Commission’s authority to limit and regulate the raising and spending of money for federal campaigns.

It would also grant Congress and state governments the authority to regulate and limit independent expenditures, such as super-PAC spending.

Stevens contended that unlimited campaign spending threatens to erode the process of self-government.

“They create a risk that successful candidates will pay more attention to the interests of non-voters who provided them with money than the interests of the voters who elected them,” he said. That risk is unacceptable.”