Politics & Policy

Udall’s Futile Fight against Free Speech

Senator Tom Udall (D., N.M.) (Mark Wilson/Getty Images)
The New Mexico senator’s cynical amendment to nowhere

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.”

While the amendment’s policy implications are shrouded in uncertainty, it would mark a significant step away from the nation’s First Amendment tradition that “Congress shall make no law . . . abridging the freedom of speech” and toward a system where incumbent politicians could heavily regulate any speech they deem to “influence elections.” Amendment supporters argue that the proposal is necessary to achieve “political equality” and reduce corruption, while opponents argue that it’s a dangerous power grab by politicians seeking to silence criticism and that, as revealed in the IRS scandal, the government has already proven itself corrupt when tasked with examining  political speech. But amid all the controversy, there is one thing supporters and opponents of the Udall amendment agree on: It will not pass. It will not even come close to passing.

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.

Udall-amendment supporters might actually be banking on the fact that the amendment won’t pass. Its vague language allows them to say whatever they want about it while casting its opponents as having been “bought” by “big money,” a highly useful political tactic during a heated election season. But would senators really fabricate a crisis of “dark money” and propose to amend the First Amendment merely to attract a few headlines and scare a few campaign donations out of their constituents? Even in politics, it’s hard to believe people could act so cynically.

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

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