Today in the Senate Judiciary Committee, the Democrats held a hearing on Tom Udall’s proposal to gut the First Amendment by allowing Congress to prohibit or restrict participation in political campaigns. The Democrats like to say that the amendment would reverse the effect of the Citizens United and McCutcheon cases, but in fact it goes much farther than that. The amendment, which is favored by Harry Reid and most Senate Democrats, would give Congress unprecedented power to limit debate on public issues in the context of elections. You really have to read the proposed amendment to understand how radical it is. This is the key language:
Congress shall have power to regulate the raising and spending of money and in-kind equivalents with respect to Federal elections, including through setting limits on—
(1) the amount of contributions to candidates for nomination for election to, or for election to, Federal office; and
(2) the amount of funds that may be spent by, in support of, or in opposition to such candidates. …
Nothing in this article shall be construed to grant Congress the power to abridge the freedom of the press.
The states would be given similar powers to restrict participation in state elections.
Many observers have noted that if the Udall amendment became law, Congress could set ridiculously low contribution and spending levels, so as to virtually guarantee the re-election of incumbents. This is true–campaign finance “reform” has always been largely about incumbent protection. But I think the proposed amendment is even worse than that. Given its appallingly poor draftsmanship, I don’t see any reason why Congress couldn’t permit a high level of spending on behalf of incumbents (or no limit at all), while setting low limits for spending on behalf of challengers, or prohibiting such contributions altogether. The Democrats’ amendment would repeal the First Amendment with respect to its most fundamental application–supporting candidates in elections.
Ted Cruz is on the Judiciary Committee, and he came out with guns blazing. In a sane world, this would be on every evening news broadcast:
The ACLU, to its credit, submitted a statement opposing the amendment. It pointed out some of the outrageous implications of the Democrats’ proposal:
To give just a few hypotheticals of what would be possible in a world where the Udall proposal is the 28th Amendment:
• Congress would be allowed to restrict the publication of Secretary Hillary Clinton’s forthcoming memoir “Hard Choices” were she to run for office;
• Congress could criminalize a blog on the Huffington Post by Gene Karpinski, president of the League of Conservation Voters, that accuses Sen. Marco Rubio (R-FL) of being a “climate change denier”;
• Congress could regulate this website by reform group Public Citizen, which urges voters to contact their members of Congress in support of a constitutional amendment addressing Citizens United and the recent McCutcheon case, under the theory that it is, in effect, a sham issue communication in favor of the Democratic Party;
• A state election agency, run by a corrupt patronage appointee, could use state law to limit speech by anti-corruption groups supporting reform;
• A local sheriff running for reelection and facing vociferous public criticism for draconian immigration policies and prisoner abuse could use state campaign finance laws to harass and prosecute his own detractors;
• A district attorney running for reelection could selectively prosecute political opponents using state campaign finance restrictions; and
• Congress could pass a law regulating this letter for noting that all 41 sponsors of this amendment, which the ACLU opposes, are Democrats (or independents who caucus with Democrats).
Such examples are not only plausible, they are endless.
Here is the ACLU’s letter in its entirety:
The Democrats like to say that their First Amendment repeal bill will only affect “corporations and billionaires,” but the opposite is true. Nothing in the amendment is restricted to corporations and billionaires. On the contrary, it specifically exempts “the press” from its purview, which means that corporations and billionaires (the New York Times, the Washington Post, Jeff Bezos) will retain full free speech rights, while you will lose yours.
Many people don’t take today’s hearing seriously because the Democrats’ amendment has no chance of enactment. It would have to pass not only the Senate, but the House, and then be approved by 38 states. But the Democratic Party shouldn’t be let off the hook so easily. Forty-two Democratic (or pseudo-independent) Senators are on record as supporting the repeal of the First Amendment. That is a scandal of the first order, and should be treated as such.