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Democrats vs. Free Speech

Jun 2, 2014, Vol. 19, No. 36 • By TERRY EASTLAND
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Looking for issues to push in this year’s congressional elections, Senate Democrats are proposing a constitutional amendment that would enable government at the federal and state levels alike to heavily regulate campaign contributions and expenditures. The effort is driven by the Democrats’ intense disagreement with Supreme Court decisions on campaign finance. The amendment likely will fail, as it certainly should. As in so many areas of governance these days, liberty—here the freedom of speech protected by the First Amendment—is at stake. 

Sen. Tom Udall

Sen. Tom Udall


The Democrats began talking up the ostensible need for a campaign finance amendment in the wake of the Supreme Court’s 2010 decision in Citizens United v. Federal Election Commission. There the Court held that the First Amendment prohibits the government from restricting independent campaign expenditures by corporations, associations, or labor unions. Now, in a case from the current term, McCutcheon v. FEC, the Court has ruled, again to the Democrats’ dismay, that the First Amendment prohibits restrictions on how much money an individual donor may contribute in total to all candidates or political committees.

The Democrats see Citizens United and McCutcheon, together with Buckley v. Valeo, the landmark 1976 case striking down restrictions on campaign expenditures, as the leading cases in a First Amendment jurisprudence that has wrongly limited the power of government to regulate campaign contributions and spending. Their amendment, drafted by New Mexico senator Tom Udall and cosponsored by 40 of his 55 Democratic (or independent) colleagues, would overrule that jurisprudence by establishing, in effect, a new Constitution for campaign finance.

Under the Udall amendment, “power to regulate the raising and spending of money” on political campaigns would lie with Congress and the states in their respective spheres. And regulatory action taken pursuant to that power would entail “setting limits” on essential matters in campaign finance: on the “amount of contributions to candidates for nomination for election to, or for election to,” federal and state office, and on the “amount of funds that may be spent by, in support of, or in opposition to” such candidates.

Significantly, the Udall amendment states two rationales for “setting limits.” One is “to protect the integrity of the legislative and electoral processes” against corruption. The other is “to advance the fundamental principle of political equality for all.” The first rationale the Court, or at least four of its members, recognizes. The second it has explicitly refused to recognize.

The Udall amendment thus would enable Congress and the states to set limits in pursuit of an equality that its advocates have described as “a level playing field” and “equal financial resources of candidates.” You get the idea: The equality is one of results. And regulations aimed at moving in that direction are easily imagined—rules designed to reduce the amount of money spent in politics or to restrict the political participation of some citizens in order to enhance the relative influence of others. 

In the lead opinion in McCutcheon, Chief Justice John Roberts said that the equality rationale is “not an acceptable government objective.” The reason it is not, he pointed out, is the First Amendment, which states that “Congress shall make no law .  .  . abridging the freedom of speech.” And at the core of the speech that it protects is political speech, which is exercised when money is contributed to candidates or spent on campaigns. In other words, there is a constitutional right of political speech. And under the Court’s cases so far, it may not be abridged except in cases of corruption. 

The Udall amendment would effectively remove political speech from the speech protected by the First Amendment and relocate it in a new amendment, where it would assume the guise of a political activity to be strenuously regulated. So it is that by amending the Constitution as Udall and company propose the country would be losing a most basic freedom. 

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