“Nothing in this article shall be construed to grant Congress the power to abridge the freedom of the press.”
When you see a disclaimer like this one attached to a bill or law, it should make you worry. It implies an accompanying threat — this is an attempt to let Congress abridge other related freedoms.
And indeed, this is precisely the case here. The text above comprises Section Three of a proposed amendment to the Constitution authored by Sen. Tom Udall, D-N.M. Democrats promised this week they would put the measure to a vote on the Senate floor in the middle of this election year.
Udall's amendment is designed to let Congress regulate and limit political speech — arguably the most or second-most important form of free expression we enjoy. The amendment's first section states that:
“...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 for election to, or for election to, Federal office; and (2) the amount of funds that may be spent by, in support of, or in opposition to such candidates.”
Its second section repeats this formula to confer the same power upon state governments.
Udall has previously described his amendment as an effort to roll back the clock on campaign finance law to before Citizens United and other recent Supreme Court decisions on the First Amendment, which Democrats view as harmful to them in the short run. The stated purpose is to prevent the uber-wealthy from having outsized influence in politics.
But to do that, this amendment enumerates a new congressional power without any explicit limit. Leaving aside the fact that the Constitution confers freedom of speech and association even upon uber-wealthy individuals, this amendment at least leaves the door open to speech restrictions that would affect the freedoms of people at all income levels.
Udall's amendment would definitively remove critical elements of political participation from the realm of the First Amendment. It's anyone's guess what that would mean, because it's hard to imagine a world in which an amendment intended to limit the First Amendment was adopted. Might Congress regulate campaign volunteer work? Might it place a blanket ban on donations to federal campaigns? How far beyond mere dollar limits (which are “included” but not exhaustive) will Congress try to stretch its new power? If it tries to put certain messages or topics off-limits, wouldn't we find ourselves in a gray area between two constitutional amendments — one that says “Congress shall have power” and one that says “Congress shall make no law?”
Those are unlikely scenarios, but why should they be entertained even for a single moment? Our Founding Fathers gave us a Bill of Rights with robust restraints on government power over political participation. They gave us a system of curbs and checks that has, in recent decades, warily tolerated some campaign finance limitations, but has not indulged the zealots. Why would we give up such a time-tested system that works and enter a post-First Amendment era, just because of Democrats' fleeting irritation at some messages or messengers they don't like?
Thankfully, this is just a political stunt. The amendment has no chance of passing either house of Congress with a two-thirds vote, nor of ratification by the required 38 states.
But this stunt may backfire when citizens see the list of which senators vote for it. For now, campaigns and interest groups can spend freely to publicize their names. That way, voters can single them out for the electoral punishment they deserve.DAVID FREDDOSO, a Washington Examiner columnist, is the former Editorial Page Editor for the Examiner and the New York Times-bestselling author of "Spin Masters: How the Media Ignored the Real News and Helped Re-elect Barack Obama." He has also written two other books, "The Case Against Barack Obama" (2008) and "Gangster Government" (2011).