Harry Reid Rewrites the First Amendment: Theodore Olson
http://online.wsj.com/articles/theodore-olson-harry-reid-rewrites-the-first-amendment-1410124101?mod=Opinion_newsreel_2
When politicians seek to restrict speech, they are invariably trying to protect their own incumbency.
Liberals often deplore efforts to amend the Constitution, particularly the Bill of Rights and especially when the outcome would narrow individual liberties. Well, now we know they don’t really mean it.
Forty-six Senate Democrats have concluded that the First Amendment is an impediment to re-election that a little tinkering can cure. They are proposing a constitutional amendment that would give Congress and state legislatures the authority to regulate the degree to which citizens can devote their resources to advocating the election or defeat of candidates. Voters, whatever their political views, should rise up against politicians who want to dilute the Bill of Rights to perpetuate their tenure in office.
Led by Majority Leader Harry Reid, these Senate Democrats claim that they are merely interested in good government to “restore democracy to the American people” by reducing the amount of money in politics. Do not believe it. When politicians seek to restrict political speech, it is invariably to protect their own incumbency and avoid having to defend their policies in the marketplace of ideas.
This scheme is doomed to fail when it comes to a vote in the Senate, perhaps as soon as Monday. The Constitution’s Framers had the wisdom to make amending the Constitution difficult, and Mr. Reid’s gambit won’t survive a filibuster. But Senate Democrats know their proposal is a loser. They merely want another excuse to rail against “money in politics” and Supreme Court justices they don’t like.
The rhetoric of these would-be constitutional reformers is focused on two Supreme Court decisions: Citizens United v. FEC (2010) and McCutcheon v. FEC (2014). In Citizens United, the court struck down a law prohibiting unions and corporations from using their resources to speak for or against a candidate within a certain time period before an election.
The Obama administration conceded during oral argument that the law would permit the government to ban the publication of political books or pamphlets. Pamphlets and books ignited the revolution that created this country and the Bill of Rights. In pushing to overturn the court’s decision, Mr. Reid and his Democratic colleagues apparently wish they had the power to stop books, pamphlets—as well as broadcasting—that threaten their hold on their government jobs.
Incidentally, President Obama’s complaint in his 2010 State of the Union address that Citizens United “reversed a century of law” was false. The court preserved the architecture of the campaign-finance laws but overturned an anomalous 1990 decision in Austin v. Michigan Chamber of Commerce (and its progeny) that would have permitted statutory limits on corporate speech to help level, or equalize, the playing field in election campaigns. Even the Obama administration was unwilling to defend Austin‘s rationale in briefs to the court, presumably because it would warrant all manner of government thumbs on the scale regarding election rhetoric, possibly even imposing handicaps to balance the advantage of incumbency.
It is also a canard that Citizens United permits organizations, as Mr. Reid claimed in May, to “dump unseemly amounts of money into a shadowy political organization.” The court explicitly left untouched the federal ban on direct contributions from corporations or unions to candidate campaigns or political parties. Citizens United also upheld disclosure requirements, the very opposite of shadowy.
McCutcheon struck down the aggregate limits on the amount an individual may contribute during a two-year period to all federal candidates, parties and political-action committees combined. Mr. Reid’s denunciation of McCutcheon in April because “all it does is take away people’s rights” is preposterous. People’s rights to participate broadly in the political process are enhanced, not taken away, by the court’s ruling. McCutcheon did not overturn the limits on how much individuals can give to a particular politician’s campaign, which remains at $2,600 per federal election.
The critics also ignore that Citizens United and McCutcheon make it easier for the unions on which the Democrats rely to spend money on elections. Unions outspent businesses by more than 2 to 1 in 2013. If money corrupts, then one would expect Mr. Reid and his colleagues to condemn the “corrupt” influence of unions in politics. And these Democrats presumably would brand liberal billionaire Tom Steyer’s pledge to commit his political-action committee to spend $100 million to defeat Republicans in 2014 as especially corrupting—but Mr. Reid has instead welcomed the support.
Democrats claim that the Supreme Court has made politicians and political parties less accountable by encouraging donations involving outside interest groups. Outside of what? Democrat fundraising circles? Their actual fear is that less traditional candidates—including outsiders—will have the funding necessary to challenge incumbents in primaries without the blessing of party elders.
It hardly enhances democracy to pine for the days when candidates were chosen by party bosses in secret, rather than by voters presented with candidates expressing a range of political viewpoints. If Democrats are concerned about the vitality of political parties when contending with outside groups, then Democrats should embrace McCutcheon, which enables citizens to increase contributions to parties.
“In the entire history of the Constitution,” the late Ted Kennedy once stated on the Senate floor, “we have never amended the Bill of Rights, and now is not the time to start. It would be wrong to carve an exception in the First Amendment. Campaign finance reform is a serious problem, but it does not require that we twist the meaning of the Constitution.”
Let’s all pay attention to Kennedy’s words and drop this foolishness.
Mr. Olson, a former U.S. solicitor general, is a partner at Gibson, Dunn & Crutcher and successfully argued the Citizens United case in the Supreme Court.
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