Bench Memos

The Oxymoronic, Constitutionally Illiterate Udall Amendment

Senate majority leader Harry Reid has lately been yammering on about the self-evident, world-threatening evil of the Koch brothers, and as others have observed, Reid has now wheeled out his biggest gun.  He proposes to amend the Constitution to keep the Kochs, and everyone else who would like to put his money where his mouth will be louder, from having any further influence on our political life.  Reid has taken to the Senate floor to speak in favor of an amendment introduced by Sen. Tom Udall (D-NM) last June, Senate Joint Resolution 19.  Both S.J. Res 19, and the similar H.J.Res. 20, introduced in the House by Rep. Jim McGovern (D-MA), can be seen here.

Kevin Williamson, in his recent NR cover story on Reid, writes that the Udall amendment “would put not only nonprofit activist groups under the federal thumb but also, potentially, news organizations as well.”  And so it seems, from the amendment’s text, which gives Congress and the states complete power not only over contributions to candidates’ campaigns, but also over “funds that may be spent by, in support of, or in opposition to such candidates”—in other words, the whole universe of independent expenditures on political communication that concerns elections.  On its face, the language of the amendment would undo all existing First Amendment protections, including those enjoyed by “news organizations.”  After all, one of the signature activities of journalism is the endorsement of some candidates and the opposing of others, and it takes the expenditure of some “​funds”​ to do that.

But there’s a funny thing I have yet to see anyone else notice.  The Udall amendment contains the following language as its Section 3: “Nothing in this article shall be construed to grant Congress the power to abridge the freedom of the press.”

I don’t think I have ever before seen a proposed constitutional amendment that directly contradicts itself.  On the one hand, Congress and the states are given untrammeled power over all spending on the expression of opinions about candidates running for federal or state office.  On the other hand, the amendment is not to be “construed” as giving Congress any power over the freedom of the press.  But what is the former but a power over the publishing of opinions on candidates?  And what is the publishing of an opinion on a candidate, if it is not an exercise of the freedom of the press?

Do Sen. Udall and his co-sponsors imagine there is some legally identifiable entity known as “the press,” which enjoys the First Amendment “freedom of the press,” whereas other (presumably non-journalistic) Americans only have, perhaps, the “freedom of speech”?  This is ridiculous on its face.  Yes, I understand that even the sensible Kevin Williamson slipped into the journalist’s habit of referring to “news organizations” as though they are the special objects of First Amendment solicitude where the “freedom of the press” is concerned.  But this really makes no sense.  The amendment protects two kinds of communication, the spoken and the written—or, if it helps to consider the receiving end of communication, utterances to the ear and to the eye.  My freedom of speech is trammeled if I am told to shut my mouth so people will not hear my opinions.  My freedom of the press is trammeled if I am told to stop writing and publishing written statements so people will not read them.

Anyone who manages to disseminate his views by means of the written word or visual image is exercising the First Amendment freedom of the press.  And today that’s any blogger, any denizen of the Twitterverse, any Facebook fanatic, or—and here’s where the Udall amendment explodes itself to smithereens—any political animal who spends money on communicating opinions positive or negative about candidates for public office.

I should like to hear Sen. Udall or Sen. Reid explain how they think this amendment, if it is ratified, would be interpreted and applied by judges.  There is no precedent for identifying “news organizations” as the sole proprietors of the freedom of the press, and if there were, or if such a line of reasoning were developed as a result of this amendment, there would be no end of trouble as judges attempted to find a bright line on one side of which is “the press” (protected from the reach of this new legislative power) and on the other side of which is everyone else (unprotected from it).  The most sensible thing for any judge to do with the Udall amendment would be to consider it an absurd nullity and thus of no effect at all.

As a side note, observe that the Udall amendment only protects the “freedom of the press” from the new power it gives to Congress, but says nothing similar about protection from the states, which are also newly empowered to mess with speech and press.  Was this deliberate, or simply idiotic?  Given the overall idiocy on display here, the latter seems more likely.  But the difference it makes to mention Congress and not the states would be the source of more mischief.

H.J. Res. 20, the McGovern Amendment in the House, contains no such language as the Senate’s Udall amendment does, protecting “freedom of the press.”  At least the House Democrats have the modicum of sense it takes to be plain villains, and not jackasses as well.

Matthew J. Franck is the Director of the William E. and Carol G. Simon Center on Religion and the Constitution at the Witherspoon Institute in Princeton, New Jersey.

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