As the country worries about conflict in the Middle East, police militarization at home, and historically low approval ratings for Congress, Democratic Senate majority leader Harry Reid plans to use what little time remains in session before the November election on a misguided proposal to amend the Constitution — an amendment that everyone knows will never pass.
The amendment in question, sponsored by New Mexico senator Tom Udall, would give Congress and the states unprecedented authority to regulate and limit every penny raised and spent to say anything about any candidate. If that description sounds vague, it’s because the amendment’s poorly drafted language is hopelessly vague. Even Paul S. Ryan of the Campaign Legal Center, which advocates for greater restrictions on political speech, told Salon, “I think it’s entirely impossible to predict the impact of this amendment, even if ratified, because of the broad language in the amendment itself.”
Senator Ted Cruz observed in the pages of the Wall Street Journal way back in June that, “thankfully, any constitutional amendment must first win two-thirds of the vote in both houses of Congress. Then three-fourths of the state legislatures must approve the proposed amendment. There’s no chance that Sen. Udall’s amendment will clear either hurdle.” In the liberal Talking Points Memo, Sheila Kapur noted, “The proposal stands virtually no chance of gaining the two-thirds majority required in the House and Senate to amend the Constitution, much less being ratified by three-fourths of states.”
The consensus that the amendment is doomed to fail leaves its supporters in a tough bind. If they truly believe Majority Leader Reid’s hyperbolic claim that we are facing a “hostile takeover of American democracy,” proposing a course of action to combat it that is certain to fail is not a serious response. The Udall amendment is a wholly symbolic act to communicate to voters that its supporters are the “good” ones. Coming from people with actual power, symbolic acts ring hollow.
Well, believe it. In Politico, Byron Tau explained that the amendment is, “in part, meant to support Democratic talking points on the Koch brothers and big money spending.” Kapur says it is “part of Democrats’ election-year strategy in 2014.”
The amendment was never designed to succeed. Its sponsors simply want to cash in on the ever-popular rhetoric of being for “the people” and against the “special interests,” whatever that means. But this goes far beyond politics as usual. To risk tampering with the First Amendment and weakening protections for free speech just to score political points in the run-up to an election is a frightening strategy and one that could lead to other measures that could impose real damage to First Amendment speech freedoms.
The past year has brought a rising tide of disrespect and animosity toward First Amendment freedoms, particularly among our nation’s leaders. For defenders of free speech, even a futile movement to amend the First Amendment should set off alarms.
— Luke Wachob is the McWethy Fellow at the Center for Competitive Politics.
Editor’s Note: This piece has been amended since its initial posting