In this Wall Street Journal Op-Ed, former Federal Election Commission Chairmen, Donald F MeGahn II, examines the effort to rewrite the first amendment to limit political speech:
Progressivism’s ever-tightening grip on the Democratic Party is on full display in Hillary Clinton’s presidential platform. Starting with her kickoff speech in Iowa, and in subsequent venues across the country, she spoke of her campaign’s “four fights,” one of which is a constitutional amendment on campaign finance. This marks Mrs. Clinton as an adherent to one of the newest and most fervently held tenets of modern progressive teaching: Citizens United v. FEC is an evil that must be destroyed at any cost.
Yet it’s worth dwelling on that cost. Recent history demonstrates that the anti-Citizens United campaign quickly devolves into an assault on the First Amendment and a free and fair electoral system.
In a sense, it’s fitting that Mrs. Clinton supports efforts to overturn the Supreme Court’s 2010 ruling that dealt with the right to buy television ads for a movie that criticized her. The constitutional amendment she wants could return American elections to where they were in 2008, when her opponents and critics were often muzzled in the public square.
Despite the hyperbole surrounding Citizens United, the justices were actually debating a simple issue: Whether a movie critical of then-Sen. Hillary Clinton could be aired on pay-per-view television. Under the Bipartisan Campaign Finance Reform Act of 2002, such activity was banned within 30 days of a primary election. The justices struck down this prohibition, ruling that “the First Amendment protects political speech.” Chief Justice John Roberts was even more blunt, arguing that such bans subvert “the vibrant public discourse that is at the foundation of our democracy.”
There was a time when most Americans agreed with this logic. The American Founding was partially triggered by the Stamp Act, which squelched speech by mandating that publications possess a stamp purchased from the British government. Following the Revolution and the ratification of the Constitution, the first Congress wisely passed the First Amendment to prevent politicians from banning speech that criticizes officeholders. Throughout American history, this constitutional guarantee of free speech has been the bulwark of the country’s experiment in self-government.
Yet this consensus disappeared following Citizens United. The Democratic Party’s leadership, fearing the electoral losses that ultimately came to pass, called for a crusade to undo the Supreme Court’s decision. Their holy war found its fullest expression in the demand for a constitutional amendment that would, in essence, repeal the First Amendment.
Hillary Clinton is now on board this campaign, based on her recent pledge to “fix” our political system “even if that takes a constitutional amendment.” For a hint of what her proposed amendment might look like, consider the measure then-Senate Majority Leader Harry Reid (D., Nev.) brought to the Senate floor last year. The so-called Udall Amendment—introduced by Sen. Tom Udall (D., N.M.), co-sponsored by 48 other Democratic senators, and ultimately supported by 54 senators, but no Republicans—was designed to reverse Citizens United.
The amendment—which was filibustered in the Senate in September—promises to “advance the fundamental principle of political equality for all” and “protect the integrity of the legislative electoral process.” In reality, it would give politicians unlimited authority to stifle the speech of their political opponents.
As with most campaign-finance reform measures, the Udall Amendment’s goal is to get money out of politics. It seeks to accomplish this by allowing Congress to regulate and limit how “candidates and others” raise and spend money.
Yet free speech is toothless without money—especially when it concerns elections and public policy. It is necessary to print campaign mailers, organize phone banks, air television and radio ads, build websites and pay for a thousand other things.
By giving legislators authority to regulate the money that finances this speech, politicians would only succeed in making it harder for Americans to make their voices heard in the political process. The American Civil Liberties Union argued in a 2014 letter to Congress that the Udall Amendment would “lead directly to government censorship of political speech.” The ACLU also warned that it would “fundamentally ‘break’ the constitution and endanger civil rights and civil liberties for generations.”
It isn’t hard to see how. The Obama administration admitted in 2010 that its position in Citizens United would empower the government to ban books, ads and anything else that contains a political message that regulators and politicians don’t like. The only limit the Udall Amendment placed on Congress is that any campaign-finance law must be “reasonable.” This led Sen. Ted Cruz (R., Texas) to remark in a 2014 Senate subcommittee hearing on the amendment that “I am not content to have . . . free speech rights protected by the reasonableness of members of Congress, Republicans or Democrats.”
No one, left or right, should be comfortable with giving politicians such power. When elected officials are able to handicap and silence their electoral opponents, they will rarely refrain from doing so. This is true whether it’s the man or woman in the White House, representatives and senators in Congress, state legislators and governors, or even the members of the local PTA. A constitutional amendment on campaign finance can’t change human nature.
Before she goes down in history as the first presidential candidate to make gutting the First Amendment a central part of her platform, Mrs. Clinton might want to remember the liberal heroes of yesteryear who defended free speech. Supreme Court Justice Oliver Wendell Holmes Jr. was right when he declared in 1919 that “the best test of truth is the power of the thought to get itself accepted in the competition of the market.”
Justice Louis Brandeis was also right in 1927 when he called for “more speech, not enforced silence” in America’s political debates. And so was Sen. Ted Kennedy, who 80 years later declared that “we have never amended the Bill of Rights, and now is not the time to start.”
It’s a shame that the Democratic Party’s de facto presidential candidate has abandoned this wisdom.