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Harry’s Dirty Amendment
If he wants to restrict freedom of speech beyond recognition, he’s welcome to try.


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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.

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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.”



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