Schumer Versus The First Amendment

http://www.futureofcapitalism.com/2011/11/schumer-versus-the-first-amendment

Seventeen members of the United States Senate want to amend the First Amendment to make it possible for Congress or state governments to limit expenditures related to federal and state elections.

This is really quite something, since the First Amendment is a pretty foundational piece of American freedom. The 16 senators now backing the constitutional amendment are all Democrats except for Bernard Sanders of Vermont, an independent self-described socialist. The list includes some of the Senate Democratic leadership, including Charles Schumer of New York, who is vice chair of the conference and chair of the Senate Democratic Policy and Communications Center; Richard Durbin of Illinois, who is the assistant majority leader; and Mark Begich of Alaska, who is chair of the steering and outreach committee. Other senators cosponsoring the bill that carries the amendment, S.J. Res. 29, include Bennet of Colorado, Blumenthal of Connecticut, Sherrod Brown, Kent Conrad, Kirsten Gillibrand of New York, Tom Harkin of Iowa, Al Franken of Minnesota, and Tim Johnson, Jeff Merkley, Jack Reed, Jeanne Shaheen, and Sheldon Whitehouse.

The lead sponsor of the legislation, Senator Tom Udall of New Mexico, said in a press release announcing the legislation: "With the Supreme Court striking down the sensible regulations Congress has passed, the only way to address the root cause of this problem is to give Congress clear authority to regulate the campaign finance system."

The same release quoted Senator Schumer: "By equating campaign spending with free speech, the Supreme Court has essentially ruled that the wealthiest among us should have the loudest voices in our elections...The American public is fed up with the outsize influence that money has on our politics. This constitutional amendment will restore the balance to our system that the American people expect in a democracy. It is time to return our elections to the hands of everyday citizens rather than the special interests."

The text of the amendment is as follows:

Section 1: Congress shall have power to regulate the raising and spending of money and in kind equivalents with respect to federal elections, including through setting limits on —

(1) the amount of contributions to candidates for nomination to election to, or for election to, Federal office; and

(2) the amount of expenditures that may be made by, in support of, or in opposition to such candidates

Section 2: A State shall have the power to regulate the raising and spending of money and in kind equivalents with respect to State elections, including through setting limits on —

(1) the amount of contributions to candidates for nomination to election to, or for election to, State office; and

(2) the amount of expenditures that may be made by, in support of, or in opposition to such candidates

Section 3: Congress shall have the power to implement and enforce this article by appropriate legislation.

The reference to "in kind" equivalents could give Congress the power to regulate everything from the time of volunteers to the donations of home-baked goods to campaign headquarters or home living rooms for meeting space or fundraising venues. The grant of power to the states is an attempt by the federal government to overpower state constitutions, which may include free speech language similar to the First Amendment. The amendment also would give Congress the ability to limit expenditures by self-financed candidates such as Ross Perot or Michael Bloomberg. And the inclusion of the possibility of regulation for expenditures "in opposition" means the restrictions could apply not only to candidates but also to independent groups airing negative ads.

It all adds up to a tremendous assault on the freedoms of speech, of assembly, of petition, and of association, not to mention an attack on property rights. Perhaps it was meant to placate the "Occupy" crowd, some of whom have called for getting money out of elections following the Supreme Court's Citizens United decision.

The upside is it's a great opportunity for defenders of freedom to exercise their First Amendment rights before Seventeen Senators take them away. What a super 30-second spot this would make: Some fife and drum music, an on-air picture of the First Amendment, then the music halts and you hear a loud ripping sound as a hand tears the parchment apart. Then a scary-looking picture of one of the Seventeen Senators, followed by the voice of an announcer: Did you know that Senator [Name] wants to rewrite the First Amendment to the Constitution to make it harder for candidates to run for office against him, or even for civic groups to run commercials criticizing him? His amendment could even limit in kind" contributions like hosting a parlor meeting or bringing some homemade cookies to campaign headquarters. [Picture of plate of homemade cookies, with big scary-looking red "X" imposed on them]. Tell Senator [X] to leave the First Amendment alone. Paid for by Americans for Freedom of Speech."

This is one for the Institute for Justice's "Make No Law" blog if there ever was one. Meanwhile, the American Civil Liberties Union, which is supposed to be defending civil liberties, is busy with other issues.

The Wall Street Journal had a blog item about this referencing a Huffington Post story, and Politico also had a brief item. Republicans have also tried to tinker with the First Amendment on the flag-burning issue. But when the flag-burning amendment gets hot, it tends to trigger lots of outraged editorials and press releases from liberals defending the First Amendment. On this one, the silence has been deafening. Where's the outrage? I guess the Seventeen Senators deserve some credit for at least acknowledging (even after being forced to by the Supreme Court) that what they want to do is unconstitutional under the Constitution as it is presently written.

by Ira Stoll  |  Nov 23, 2011 at 3:12 pm Related Topics:  Campaign Finance, Politics receive the latest by email: subscribe to the free futureofcapitalism.com mailing list