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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

Newscom

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. 

The word “freedom” actually appears in the Udall amendment, in Section 3, which states: “Nothing in this article shall be construed to grant Congress the power to abridge the freedom of the press.” Now, we at The Weekly Standard are press or, to use the modern term, media, including digital. And the media enjoy “the freedom of the press,” which is provided for in the First Amendment, and the exercise of which duly affects politics and elections. Section 3, which was not present in an earlier version of the Udall amendment, is a shout-out to the media that we aren’t coming after you: an assurance to the prestige media (which leans left; see the New York Times) as well as to regional and local media that they would remain unregulated. Under the amendment, then, citizens who are not part of the media (and who determines who is and who isn’t?) could see what used to be their right of political speech sharply limited, while the media would carry on as before, free and undisturbed by government. How about that for a level playing field! 

Majority Leader Harry Reid promises “multiple votes” on the Udall amendment. But the good news is that the measure is unlikely to go anywhere, not in the Senate this year or in any credibly imagined future. After all, two-thirds of both houses of Congress must approve an amendment, to begin with, and then three-quarters of the state legislatures must ratify it for it to be added to the Constitution. 

Somehow, though, the Democrats have persuaded themselves that the amendment is worth making an issue in an election year in which they are pitching themselves as the party of equality, willing to take on the rich and powerful and reduce their influence in politics, including by limiting campaign contributions and expenditures. They are running uphill. Political speech is not a right most Americans are ready to give up. 

There is, of course, another way for Senate Democrats to prevail on campaign finance, and that is to rely on the Court to change its jurisprudence. That won’t happen unless there is turnover on the Court such that a vacancy created by the departure of one of the judicial conservatives is filled by a judicial liberal, thus creating a majority that could overrule cases like Citizens United and McCutcheon, and lay down case by case a jurisprudence of equal results, perhaps even one that would require public financing of campaigns, a goal of some “reformers.” In addition to the necessary vacancy, that scenario would require a Democratic president and a Democratic Senate—both of which, of course, we have now. 

Republicans would like to change that. Indeed, they must change it in order to protect the First Amendment against the Democrats’ depredations, and to thwart other assaults upon constitutional liberty. 

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