Retired justice tells Congress 'money is not speech'

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WASHINGTON -- Unlimited campaign expenditures "impair" the democratic process, retired Supreme Court Justice John Paul Stevens told senators Wednesday, urging Congress to amend the Constitution to allow "reasonable limits" on election spending.

The onetime Republican-appointed justice, who last testified before the Senate in his 1975 confirmation hearing, stressed the importance of creating a "level playing field" in elections. Mr. Stevens offered five points for enacting an amendment to correct what he views as an "error" in campaign finance jurisprudence originating from the Supreme Court's decision to overturn limits on campaign spending in its 1976 Buckley v. Valeo ruling.

"While money is used to finance speech, money is not speech," Mr. Stevens said. "After all, campaign funds were used to finance the Watergate burglaries -- actions that clearly were not protected by the First Amendment."

Mr. Stevens, who led the court's liberal wing, cast campaign finance rules as a nonpartisan issue and said they would allow elected officials to better serve the public. While Mr. Stevens did not mention any recent cases by name, the former associate justice criticized Citizens United v. Federal Election Commission, a 2010 decision preventing Congress from restricting independent political expenditures made by corporations and unions. He argued that regulations should distinguish between funding from constituents and contributions from corporations or out-of-state donors.

"Elections are contests between rival candidates for public office," Mr. Stevens said. "Like rules that govern athletic contests or adversary litigation, those rules should create a level playing field."

During the hearing, Sen. Charles Schumer, D-N.Y., said Senate Democrats plan to hold a vote this year on a campaign finance amendment written by Sen. Tom Udall, D-N.M.

Mr. Schumer said free-speech rights are not absolute, noting restrictions on pornography. Also worth considering, he said, is the concept of "one person, one vote."

Sen. Ted Cruz, R-Texas, who argued in front of the Supreme Court as a lawyer, praised Mr. Stevens' "incisive" and "friendly" questions, but took the opposite position on campaign finance. The Tea Party Texan offered a full-throated defense of using the First Amendment to protect political spending. "Money is and has always been used as a critical tool of speech, whether publishing books or putting on events or broadcasting over the airwaves," Mr. Cruz said, noting that restrictions serve only to protect incumbents.

Mr. Cruz mocked the current regulatory system in which candidates cannot coordinate with "super-PACs," the same groups that often speak on their behalf. Instead, he called for allowing "unlimited contributions" from individuals, but requiring "immediate disclosure."

Wednesday's hearing was the first to focus on undisclosed "dark money" since the Supreme Court struck down aggregate spending limits to political parties and candidates this month in McCutcheon v. Federal Election Commission.


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