Our First Amendment is under attack. Forty-four Senate Democrats support a constitutional amendment that would give Congress unbounded power to regulate or prohibit just about any speech concerning an election or a candidate for office. This would-be 28th Amendment is poorly drafted, extremely dangerous, and has the potential to uproot our most cherished freedoms. Its supporters should be embarrassed and the amendment should be stopped immediately.
Trumping the cherished ten words, “Congress shall make no law…abridging the freedom of speech,” the amendment would make the Constitution read, “Congress shall have power to regulate the raising and spending of money and in-kind equivalents with respect to Federal elections.” This unprecedented langauge is radically different from the amendments in the Bill or Rights: instead of limiting the power of the federal government, the proposed amendment would expand it. We’ve gone from “Congress shall make no law” in 1791 to “Congress can make any law” in 2014.
That’s not an exaggeration. The wording of the proposed amendment is so broad that it would allow Congress to regulate or even prohibit any communication that mentions or alludes to a candidate for office. All communications at some level cost money. Rather than censoring the speech itself, Congress would be able to simply criminalize spending money—any amount, even a penny—to engage in disfavored speech. The amendment imposes absolutely no limits on Congress. Neither is it in any way restricted to expenditures by corporations, unions, PACs, Super PACs, or other scary-sounding entities. Buying a sign for one’s yard or a bumper sticker to slap on one’s car would now be actions subject to government control.
The proposed amendment does offer a feckless exemption: “Nothing in this article shall be construed to grant Congress the power to abridge the freedom of the press.” But this carve-out is illusory, as it only applies to those deemed by to be members of “the press”—and the federal government would determine who qualifies. Independent bloggers, tweeters, and pamphleteers could be silenced and chilled by overzealous federal regulators. This very editorial, if published on my personal blog, could be viewed as a form of “sham” issue advocacy, and could be banned by Congress. After all, I oppose the positions of several Democrats up for re-election in 2014. Think about that for a moment.
Last week, the Senate Judiciary Committee suggested a modified version of the amendment, mandating that all regulations must be “reasonable.” But that language would merely subject our free speech to the whims of whatever Congress deems to fit that definition. We should be skeptical. Remarkably, during oral arguments in Citizens United v. FEC, the Obama administration told the Supreme Court that under existing campaign finance law, it could ban a book if it expressed advocacy for a candidate. The Citizens United case itself represented an effort by the government to prohibit the expenditure of money on a movie opposing the candidacy of Hillary Clinton.
During that Senate hearing, Senator Ted Cruz excoriated the supporters of this idea, noting that he had “more faith in the Bill of Rights” than in “any elected official.” But free speech is not a left-right issue, and even those who support campaign finance reform should be troubled by the manner in which this amendment would operate. As the ACLU wrote in a letter to the Senate, the amendment would “lead directly to government censorship of political speech and result in a host of unintended consequences that would undermine the goals the amendment has been introduced to advance—namely encouraging vigorous political dissent and providing voice to the voiceless, which we, of course, support.” You know something is out of orbit in our constitutional constellation when Ted Cruz joins with the the ACLU against forty-four Democrats.
Fortunately, the framers of our Constitution come to our rescue once again. Not only did they preserve our freedom of speech in the First Amendment, but Article V of the Constitution was written to stymie misguided efforts to gut our most fundamental liberties. Amending the Constitution is extremely difficult by design. It requires agreement from two thirds of both houses of Congress, and three fourths of the states. That won’t happen. Not a chance. But the fact that forty-four Democrats support amending the First Amendment in this way shows how persuasive the incessant headlines about money in politics have been—and how far supporters of campaign finance have fallen.
Campaign finance reform is a controversial topic, subject to reasonable debate. But Congress has means other than constitutional amendment available to address this issue: requiring more disclosure, for instance, or increasing funding for prosecution of election law violations. The fact that Democrats have chosen to make a constitutional amendment their chosen vehicle signals that they are not really serious about meaningful change, and prefer opportunistic grandstanding at the cost of our constitutional rights.