Displeased with recent legal victories in which free speech has prevailed over limitations on political speech imposed by Congress, Charles Schumer (D., N.Y.), Mark Udall (D., Colo.), and other Senate Democrats have introduced a constitutional amendment that would not only set aside the Supreme Court’s First Amendment jurisprudence and invest Congress with virtually unlimited power to regulate the political activism of private citizens, alone or in groups, but would also give the federal government and the states the power to shut down newspapers, television stations, and radio networks that displease them. This is an all-out assault on the First Amendment and an act of vandalism against the Constitution.
The amendment is being put forward purportedly as a means of enabling campaign-finance regulations and limiting the allegedly corrupting power of money in politics. It is a direct response to the Supreme Court’s free-speech rulings in Citizens United and McCutcheon, cases that resulted from the federal government’s trying in the first instance to ban a film critical of a presidential candidate and in the second instance to prevent a private citizen from making small donations — in the symbolic amount of $1,776, to be precise — to twelve candidates he supported. Both times the Court sided with free speech, and both times Democrats howled in outrage.
American law has long held that the right to free speech, the right to free association, and the right to petition the government for redress of grievances are to be read broadly, and that the exercise of those rights necessitates a hands-off approach to the means by which they are exercised. For example, the right to freedom of the press implies the right to own or operate a press, and any attempt to confiscate or control the machinery and equipment by which freedom of the press is exercised constitutes an attack on freedom of the press itself.
In the Citizens United dispute, those who would subjugate free speech to government power argued that corporations do not enjoy the same free-speech rights as individuals, and that the film in question, having been financed by a nonprofit corporation, should not be protected by the First Amendment. The problem with that line of reasoning is that American law does not distinguish between media corporations and other kinds of corporations; if Citizens United does not enjoy First Amendment protection, then neither does the New York Times Company or Penguin Books.
The Democrats’ proposed amendment would allow Congress to regulate not only money expenditures on behalf of political candidates and causes but also “in kind” contributions. Under the Democrats’ reasoning, an editorial endorsement from the Washington Post, the daily pronunciations of pundits on MSNBC or Fox News, or Barnes & Noble’s deciding to energetically market a political book that catches its attention would, as in-kind assistance to a political cause, fall under the same regulatory shadow as the advocacy of any other group. The Democrats say that this is not their intention, and maybe it isn’t, but the amendment they are contemplating would enable precisely that, in effect repealing the First Amendment.
Congress has some power to regulate formal political campaigns, as Justice Roberts and other First Amendment defenders have noted. The purpose of campaign-finance laws is to prevent bribery, quid pro quo corruption. But the limits that were struck down in McCutcheon had nothing to do with how large a check a donor may write to a candidate; they had to do with how many candidates a donor may write a check to, and the Court ruled, correctly, that there was no constitutional basis for limiting that. Citizens United was not even about donations to a candidate, but whether private citizens could pool their money to criticize a public figure. Free speech won that time, too, and that has infuriated Democrats. Those who make the simpleminded argument that money and speech are different things should consider that a press of the sort necessary to compete with the New York Times costs hundreds of millions of dollars and that Dan Rather’s attempts to sabotage the election of George W. Bush were worth more in dollar terms than anything that Charles and David Koch or George Soros have contemplated.
Restrictions on what citizens may and may not do to advocate a candidate or a political position are fundamentally at odds with the First Amendment, the purpose of which is to protect political advocacy, and with the American notion of liberty. Such restrictions serve no purpose other than to let incumbents control the terms on which political contests are fought. Democrats have no principled objection to what they denounce, when convenient, as “big money” — see their relationships with the American Federation of Teachers or Tom Steyer, the hedge-fund billionaire who has promised to deliver $100 million to those who support global-warming legislation. What they object to, rather, is money moving through channels that do not confer advantages upon Democrats. The Left is comfortably ensconced in the unions, the public sector, the educational bureaucracies, and the traditional media, and groups such as Citizens United and True the Vote and thousands of others create new competition in the political marketplace. This amendment is not about cleaning up elections — it’s about the Democrats’ seeking to lock their critics out of the public square.
A constitutional amendment is a perfectly legitimate means of shaping public policy, and a number of them have caught conservatives’ attention over the years. The question here is not the idea of a constitutional amendment but the content of this proposed amendment, which would place virtually all political activism — and most political speech of any consequence — under federal regulation. It is a cynical and dangerous attack on the First Amendment, and should be met not only with resistance but with contempt — for the amendment itself, and for the sort of power-mad men who would propose it.