Democrats push edits to First Amendment

WASHINGTON—Members of both parties claimed to be protectors of the Constitution—while accusing the other side of undermining it—during a Senate Judiciary Committee hearing Tuesday on a controversial new constitutional amendment.

Forty-two Democrats have sponsored Senate Joint Resolution 19, an amendment that would give Congress sweeping power to regulate raising and spending money in state and federal elections. Although the proposal is a long shot to become law, the debate drew an unprecedented appearance from the Senate’s top leaders. Majority Leader Harry Reid, D-Nev., and Minority Leader Mitch McConnell, R-Ky., became the first Senate leaders to appear at a policy hearing.

Reid said his 1998 campaign against Rep. John Ensign left him feeling “so unclean,” because the two sides spent more than $10 million. He hailed the Campaign Finance Reform Act of 2002 for its positive effect, but called his 2010 victory “not a lot of fun” after the U.S. Supreme Court earlier that year removed limits on corporate campaign spending in Citizens United v. Federal Election Commission. Reid urged the panel to stop wealthy donors such as the conservative Koch brothers—whom he assails almost daily in speeches on the Senate floor—from “perverting our political system” with a “flood of dark money.”

“Given how bad this amendment is, I can see why Sen. Reid would want to talk about the Koch brothers,” said McConnell, who called the amendment “embarrassingly bad.” He told the committee the measure would allow Congress to pick winners and losers: “The recourse to being criticized is not to shut up your fellow citizens.”

Sen. Dick Durbin, D-Ill., pointed to a similar amendment McConnell proposed in 1987—one of many times members of each party cited their opponents’ past position on campaign finance issues. Democrats said the Supreme Court decisions in Citizens United and McCutcheon, which removed aggregate limits on private campaign donations, fundamentally changed the political landscape in America.

“Five conservative activists sitting on the Supreme Court” have gone against the will of the American public, said Sen. Sheldon Whitehouse, D-R.I. “We’re trying to correct a court that kind of went berserk.” He predicted the two campaign finance cases would become as reviled as Plessy v. Ferguson, an 1896 Supreme Court decision that upheld racial segregation.

Sen. Chuck Grassley, R-Iowa, the top GOP member of the committee, quoted the First Amendment and emphasized that the Bill of Rights is devoted to the freedom of ideas. He said freedom of speech is currently threatened as it hasn’t been in decades, citing canceled university commencement speakers and Mozilla CEO Brendan Eich, who was forced to resign for holding a position on marriage that was at the time the same as President Barack Obama’s position.

Almost every member of the committee attended the hearing, including Chairman Patrick Leahy (D-Vt.) and Sens. Dianne Feinstein (D-Calif.), Chuck Schumer (D-N.Y.)—who said Thomas Jefferson would support the amendment—Amy Klobuchar (D-Minn.), Al Franken (D-Minn.), Christopher Coons (D-Del.), Mazie Hirono (D-Hawaii), Richard Blumenthal (D-Conn.), Ted Cruz (R-Texas), John Cornyn (R-Texas), Orrin Hatch (R-Utah), Jeff Sessions (R-Ala.), and Jeff Flake (R-Ariz.).

All Democrats on the committee have cosponsored the amendment, except for Leahy, who expressed support during his opening statement. A constitutional amendment needs a two-thirds majority vote in both houses of Congress and ratification from three-fourths of the states to become law.

Cruz argued that nothing in the proposed amendment limits it to corporations and billionaires, as Democrats suggested. “It gives Congress the right to limit the speech of every American with no exceptions,” he said. “It’s about power, and it’s about politicians silencing the citizens.”

Cruz took issue with the one exception in the proposal: It exempts the press from the effects of the amendment. In response, Cruz announced he is filing a bill to ensure that all restrictions on political speech be applied equally to media corporations. He said all the Democrats who say corporations are not people “should be happy to sign on to the bill” to ensure individuals have the same amount of free speech rights as news companies.

Following Senate leaders’ statements, the panel heard from three witnesses: North Carolina state Sen. Floyd McKissick Jr., a Democrat, Jamie Raskin, a constitutional law professor at American University, and attorney Floyd Abrams, a long-time expert on the First Amendment. McKissick and Raskin took strong positions in favor of the proposed amendment. Raskin insisted it is “absolutely not” repealing the First Amendment as Republicans allege.

But Abrams called the proposal the equivalent of telling a newspaper it should print fewer editorials. “The notion that democracy could be saved by limited speech is a perversion of the English language,” Abrams told the committee. “It is profoundly undemocratic to limit speech about who to elect to public office.”

Hans von Spakovsky, a senior legal fellow at The Heritage Foundation, told me in an email he remains shocked that the witnesses and senators who favor the amendment are “seemingly unapologetic about wanting to amend the Bill of Rights to restrict free speech. This is one of the worst bills ever introduced in the entire history of the Senate—and anyone who supports it should be ashamed of themselves for supporting government censorship.”