New Essay in Spectator: “Democrats are Trying To Rewrite The First Amendment”

June 25th, 2014

My latest essay in the American Spectator discusses the troubling proposed 28th Amendment that would give Congress unbounded power to regulate any speech that may be deemed in support of a candidate. Here is the intro of “Democrats are Trying To Rewrite The First Amendment“:

Our First Amendment is under attack. Forty-four Senate Democrats support aconstitutional amendment that would give Congress unbounded power to regulate or prohibit just about any speech concerning an election or a candidate for office. This would-be 28th Amendment is poorly drafted, extremely dangerous, and has the potential to uproot our most cherished freedoms. Its supporters should be embarrassed and the amendment should be stopped immediately.

Trumping the cherished ten words, “Congress shall make no law…abridging the freedom of speech,” the amendment would make the Constitution read, “Congress shall have power to regulate the raising and spending of money and in-kind equivalents with respect to Federal elections.” This unprecedented langauge is radically different from the amendments in the Bill or Rights: instead of limiting the power of the federal government, the proposed amendment would expand it. We’ve gone from “Congress shall make no law” in 1791 to “Congress can make any law” in 2014.

That’s not an exaggeration. The wording of the proposed amendment is so broad that it would allow Congress to regulate or even prohibit any communication that mentions or alludes to a candidate for office. All communications at some level cost money. Rather than censoring the speech itself, Congress would be able to simply criminalize spending money—any amount, even a penny—to engage in disfavored speech. The amendment imposes absolutely no limits on Congress. Neither is it in any way restricted to expenditures by corporations, unions, PACs, Super PACs, or other scary-sounding entities. Buying a sign for one’s yard or a bumper sticker to slap on one’s car would now be actions subject to government control.

You can favor campaign finance reform, but this is not the way to do it. At this point it is nothing more than political grandstanding, with a callous disregard for our First Amendment.

The following two paragraphs were left on the cutting room floor, so I include them here:

Thankfully, the supporters of this constitutional usurpation were not around two centuries ago. We should not lose sight of the fact that our Constitution was born from a robust freedom of speech. In 1787, James Madison, Alexander Hamilton, and John Jay wrote The Federalist, using the pseudonym Publius. The trio advocated vigorously in favor of the ratification of the new government, which was supported by the Federalists, They also rebutted the arguments of their opposition, the Anti-Federalists. It is stunning to think that funding for the printing and distribution of the Federalist Papers, among the most important contributions to political thought, could have been banned by this amendment. After all they were a form of express advocacy for, and against proto-political parties.

To make matters even worse, the proposed amendment is marred by an egregious drafting error. Section 3 reads, “Nothing in this article shall be construed to grant Congress the power to abridge the freedom of the press.” While Congress does not have the power to abridge the freedom of the press, the states do! The Empire State could now prohibit The New York Times from endorsing candidates in an election. Did any of the 44 Senators who supported this bill, or their staff, notice this mistake pointed out by the ACLU? Such sloppy draftsmanship from those willing to tinker with our constitutional liberties reveals a disheartening callousness for our Bill of Rights. Or maybe it reflects their indifference to the fact that this amendment will go nowhere. Either scenario makes clear that this Amendment should be promptly jettisoned to the asheap of constitutional history.