Democrats Struggle With How to Ban Free Speech

We ridiculed here an absurd constitutional amendment that the Democrats proposed in the Senate Judiciary Committee, with the support of 42 Democratic senators. The amendment would give Congress unfettered powers to regulate spending on political campaigns in any way that it chooses. I wrote:

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.

The Democrats, chastened, tinkered with their amendment. They still want to do away with free speech–no change there–but they are looking for a little camouflage. Byron York reports on the most recent developments:

Senate Democrats are steadily pushing forward with what they hope will become the 28th Amendment to the United States Constitution.

The proposed amendment would give Congress authority to regulate every dollar raised, and every dollar spent, by every federal campaign and candidate in the country. It would give state legislatures the power to do the same with state races. …

The problem is, Democrats aren’t quite sure exactly what the amendment should say. In a move that received virtually no attention, they recently re-wrote the measure — and in the process revealed its fatal flaw.

This is the heart of the amendment as originally written by Udall and Bennet:

To advance the fundamental principle of political equality for all, and to protect the integrity of the legislative and electoral processes, 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.

There are literally no limits to congressional power in those words.

So, ridiculed by me and others, the Democrats went back to the drawing board.

To show how reasonable the measure is, Durbin proposed a new wording for the amendment. This is the heart of the revised version:

To advance democratic self-government and political equality, and to protect the integrity of government and the electoral process, Congress and the States may regulate and set reasonable limits on the raising and spending of money by candidates and others to influence elections.

The big difference is the insertion of the word “reasonable,” which Democrats apparently believe will allay concerns about government overreach. Don’t worry — we’ll be reasonable!

But who decides what is reasonable?

Ultimately, of course, the courts would. The Democrats are happy to take their chances with federal judges, pretty much all of whom will be nominated by Democratic presidents once tens of millions of new immigrants, legal and illegal, are given the vote. It isn’t hard to see where this will go: the First Amendment says, in ringing, uncompromising terms, that “Congress shall make no law … abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.”

But Democrats hate competition, so they want to rewrite the amendment to give all power to incumbents (i.e., them): Congress may make any law it pleases, abridging the freedom of speech and of the press and the right of the people peaceably to assemble, and to petition the government for a redress of grievances, insofar as those rights are exercised in connection with elections to public office, as long as Congress’s limitations on freedom of speech and freedom of the press are deemed reasonable by judges, all of whose appointments must be confirmed by Congress.

That is not, obviously, the charter of a free people. Which is what the Democrats want: they have sworn eternal hostility against every limitation on government’s tyranny over the mind of man.

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