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Democrats vs. Free Speech

Jun 2, 2014, Vol. 19, No. 36 • By TERRY EASTLAND
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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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