Harry’s Dirty Amendment

by Charles C. W. Cooke
If he wants to restrict freedom of speech beyond recognition, he’s welcome to try.

In the same week as it was posited that a “literal reading” of the First Amendment would likely guarantee the right’s extension to robots and to drones, Senate Democrats moved to remove the protection from a pair of living, breathing human beings. On Thursday, Majority Leader Harry Reid announced that he was now on board with a plan to amend the Bill of Rights. “Let’s keep our elections from becoming speculative ventures for the wealthy,” Reid implored of his colleagues, “and put a stop to the hostile takeover of our democratic system by a couple of billionaire oil barons.”

Those “oil barons” have had quite the effect on Reid’s mental health. Of late, he has taken to parading around the Senate floor, incessantly rehearsing the terms of his fatwa as a bookish sixth-grader might run clankingly through his lines in a tuneless middle-school production of Peter Pan. At first, the Kochs were merely a symbol of a wider problem; then they were singled out as being somehow different from others with deep pockets and a keen political interest; finally, as is inevitable with all hunts for the monster at the village gates, they were marked for execution. Death by constitutional amendment — for now, at least.

The move is the final act of a contrived and hamfisted morality play, whose purpose is to cast the Democratic party and its allies as champions of the people and the Kochs as a proxy for all that ails America. Lofty as its broader goal may seek to be, the whole endeavor nevertheless carries with it the ugly smack of the Bill of Attainder — of a change to the nation’s constitutional settlement that serves largely to punish two people that the man with the gavel disdains. Rambling in the general direction of a BuzzFeed reporter earlier this week, Reid inadvertently revealed something about his motivations. His reelection to the Senate in 1998, he griped, “was awful”: “I won it, but just barely. I felt it was corrupting, all this corporate money.” Translation: I almost lost my seat once, so I need the supreme law to protect me. Corruption, schmorruption. This is about power.

It is wholly unsurprising that well-connected and flush incumbents covet the power to determine how their competitors might execute their challenges. Politics, of course, is a dirty game. But, knowing this, we must be most skeptical of those who would accord to the instinct of self-preservation the imprimatur of morality. As we all know too well, government interventions typically attract two types of supporters: the true believers and the cynics. Thus do we see teachers’ unions astutely acting to protect their jobs and their benefits while supporters run around, butter in mouth, shouting about “the children.” Thus do we see an established rent-seeker such as the New York City Taxi Commission safeguarding its market against the cleaning influence of competition with nebulous and disingenuous talk of “public safety.” And thus do we see the ringmasters of our expansive federal circus gluing themselves to their thrones with the potent adhesive of “campaign finance reform.”

Reid’s coadjutors are typically zealous in their accord. Their slogan, “money isn’t speech,” is popular among the sort of people who like slogans and who believe that chanting is a vital part of any serious political movement, and it is no doubt entrancing to the class of voter whose civic acuity is sufficiently stunted to make casting a ballot for Harry Reid seem like a reasonable way of spending a Tuesday. But, beyond brevity, it has little to recommend it. Money, after all, is merely a tool that permits other activities. In what other circumstance, pray, do we draw such a harsh distinction between the cash itself and the purposes for which it is spent? To borrow a line from Eugene Volokh, were the federal government to ban spending on abortion tomorrow, would the assembled champions of Planned Parenthood shrug their blood-soaked shoulders and lament, “oh well, I suppose that money isn’t abortion”? Likewise, if an Occupier were legally restricted from spending his money on a May Day protest sign, would we expect him to throw up his hands and to concede that it was only his bank account that was being controlled? (“Mic check: Money isn’t paper!”) Hardly. The material point here, as Volokh concludes, is that “restricting the use of money to speak . . . interferes with people’s ability to speak.”

Reid’s favored amendment contains a provision reassuring critics that it is not to “be construed to grant Congress the power to abridge the freedom of the press.” Benevolent as it is of him to protect this principle, the caveat still rather misses the mark. The truth is, the New York Times can look after itself — prohibitive laws or none. Deborah’s Garden Club for Progressive Change in Seattle, on the other hand, cannot. It is telling that the seminal campaign-finance case of the last few years did not involve a magazine such as National Review or a television station such MSNBC, but a nonprofit advocacy group called Citizens United.

It is all very well for Reid to limit his rhetoric to “the rich” — “the flood of special-interest money into our American democracy,” he averred grandly this week, “is one of the greatest threats our system of government has ever faced” — but there is no evidence whatsoever that his preferred solution would not affect the little guy with just as much, if not more, force. Had Citizen United’s appeal been rejected — as the collective Left appears devoutly to wish that it had been — the federal government would have quite literally banned the release of a film that was critical of Hillary Clinton. Why? Because the film would have interfered with the way that the Congress of which she was a part wanted the election to be run. To whom exactly were our self-appointed better angels sticking it?

Glenn Greenwald — no right-wing fire breather he — inquired at the time of Citizens United whether anybody could doubt that such action was “exactly what the First Amendment was designed to avoid.” The rules, Greenwald noted, are not restrictive merely of the Exxons of the world, but of smaller “non-profit advocacy corporations, such as, say, the ACLU and Planned Parenthood, as well as labor unions, which are genuinely burdened in their ability to express their views by these laws.” Are we really to consider the censorship of smaller political actors to be acceptable providing that the state-defined “press” is left alone? Are we honestly to bless a rule that allows News Corp to say whatever it wishes about the running of the country but keeps Apple quiet? I think not.

And we won’t, of course. Constitutional amendments are difficult to pass precisely because the purpose of the Constitution is to rein in the transient majority and to ossify general principles that may not be altered absent a genuine and sustained change in national thinking. Harry Reid does a sterling impression of a man who is auditioning for a place in the Richard III Ward at the Monty Python Hospital for Overacting, and often he reaps the rewards. Here, however, he has his sordid little work cut out. The idea is almost certainly dead on arrival in the Senate; it is without a shadow of a doubt moribund in the House; and it will be likely ratified by no more than hollow laughter in a significant number of the 38 states that would be required to acquiesce in order for a change in the law to be forthcoming.

Gloomy as I often am about the prospects of the free world, I should say now that I can think of nothing more delicious for the forces of liberty to run against in 2014 and beyond than a Democratic party that is openly attempting not merely to repeal the First Amendment but to replace it with an ersatz substitution that has been authored by a reedy-voiced Napoleon like Reid. Presently, the Senate majority leader is banking on being able to turn a couple of American citizens into modern day Emmanuel Goldsteins and to ride the wave of two-minute-hates straight through Article 5 and into the heart of the Bill of Rights. The big joke? “Polling,” Bloomberg informs us, “indicates that Reid is better-known than the Koch Brothers — and more disliked.” Just wait till you see what people think of him when he’s done trying to take his Ritz-Carlton matchbook to James Madison’s masterpiece.

— Charles C. W. Cooke is a staff writer at National Review.