In September 2014, 54 Democratic senators voted to repeal the First Amendment of the Constitution.
They were supporting a proposed constitutional amendment by Sen. Tom Udall, D-N.M., whose stated goal was to overturn the Supreme Court’s landmark Citizens United decision, which struck down a host of dubious campaign finance rules.
It is probably not a coincidence that their party lost nine Senate seats later that year, or that 18 of the Democrats who voted for it are no longer senators.
Now, Rep. Adam Schiff, D-Calif., has proposed a similar amendment. It is not identical, yet it has the same core flaw. In their zeal to overturn the Citizens United decision, Democrats want to abolish the freedom of political speech, which, if such distinctions can be made, is the most important form of speech protected by the amendment.
As it reads now, the First Amendment states, “Congress shall make no law … abridging the freedom of speech, or of the press … ” Importantly, this protects all citizens’ written and spoken words, not just those of the professional media.
Schiff’s amendment, like Udall’s before it, would effectively end the First Amendment’s 240 years of near-absolute freedom of political speech and writing from congressional interference.
It would weaken, perhaps fatally, whatever constitutional backstop exists in the courts for those silenced. This would fundamentally and permanently change American civic life for the worse.
Schiff’s amendment is not as embarrassingly bad as Udall’s version was in 2014. As we noted at the time, Udall’s amendment gave Congress unlimited powers to regulate campaign finance; in its text, the regulation of funds raised or contributed was part of a list of things “included” in this open-ended power. This arguably would have given Congress — just find the right “living Constitution” judge — or at least the executive, through selective enforcement, immense powers to police the content of political speech.
After Udall proposed his amendment, Democrats on the Senate Judiciary Committee, ignoring testimony from free speech advocates such as noted First Amendment jurist Floyd Abrams, tried to fix this by adding the adjective “reasonable.” This completely meaningless change illustrates how disgracefully careless the 54 Democratic senators were in voting to pollute the Constitution with campaign finance obsession.
In the time since 2014, some Democratic Hill staffer apparently recognized there was a problem, because Schiff’s amendment adds the hyphenated adjective “content-neutral” before the still-meaningless “reasonable” in describing the limits Congress can place on political speech. But this Band-Aid demonstrates the original weakness of the concept.
Although money and speech are not strict one-for-one equivalents, the reigning Supreme Court precedent is correct that at some level money really is speech. There can be no freedom of political speech if Congress can prevent you, under penalty of fine or prison, from spending money to disseminate your message as widely as possible. That applies whether you choose to exercise your rights alone or in groups with other like-minded citizens.
As Justice Anthony Kennedy wrote in his majority opinion, “If the First Amendment has any force, it prohibits Congress from fining or jailing citizens, or associations of citizens, for simply engaging in political speech.”
This is why Citizens United is not just good law, but is the only reasonable way of reading the First Amendment’s protection of speech and publication as it relates to the effect of speech and publication on politics.
Liberals often claim that Citizens United was a case about corporations and corporate power, but this was never true. In fact, despite their predictions, the case has not given rise to a big increase in political activity by for-profit corporations. Citizens United was about whether the Federal Election Commission could ban a movie about a political candidate, Hillary Clinton in 2008, from being distributed by a nonprofit organization, which are corporations, shortly before an election.
The Obama administration lost the case in part because of the obvious ripple effect of the principle. If the government can ban the distribution of political movies about candidates, can it not also ban political books about candidates? Obama’s legal team was stumped by this. They initially answered “yes,” because that’s where their logic inevitably led. They later reversed themselves because any conception of the First Amendment that supports book-banning is screamingly stupid.
For that same reason, any proposed constitutional amendment that would prevent people from using or pooling their resources to discuss, criticize, or promote a political candidate is unacceptable.
Schiff’s amendment will get nowhere, but we hope it earns a vote in the House. That way, as in 2014, voters will see the low regard in which Democrats hold the First Amendment. A party that wants to crimp that preeminent human right is up to no good.