There is enormous mischief in a proposed constitutional amendment voted out — 10-8, along party lines — by the Senate Judiciary Committee last week. Enormous and purposeful. If Democrats were to get what they desire, there will be no unintended consequences. Drafted, ostensibly, to deal with the U.S. Supreme Court’s decision in the Citizens United case, the amendment would grant Congress unprecedented and ultimate authority over the First Amendment. If, for example, you and your neighbors decided you weren’t happy with your congressman and you pooled your money to support a rival, you would most likely come to the attention of whatever agency sprung from the absolute horror proposed by Sen. Tom Udall, a New Mexico Democrat. To be utterly clear, the ginned-up hysteria over Citizens United is only an excuse; what Udall and his lefty Senate sycophants introduced last year and approved last Thursday is a cynical attempt at a power grab, plus election-year fundraising, that has as much to do with curbing corporate influence as jersey colors have to do with who wins the Super Bowl. In Udall’s ideal America, Congress would decide, absolutely, virtually every question regarding campaign financing at the federal level: who, what, when, where, how and, quite possibly, why. On this, the text is abundantly clear: “Congress shall have power to regulate the raising and spending of money and in-kind equivalents with respect to Federal elections.”
There’s more, about setting limits on contributions to candidates, or how much can be spent to support or oppose candidates, but those specifications come only after an extremely important word: “Including.” “Including” is not a limiting gerund; it simply delineates some of the areas to which Congress would help itself, but it in no way constricts it. The money phrase is contained in the first 15 words, from “Congress” to “equivalents.” Proponents can gussy it up in the preamble with other noble words, such as “reasonable” and “equality” and “integrity,” but those are eye-of-the-beholder terms. Behind the closed doors of committee rooms, nothing would get by, no matter what Illinois’ weasly Dick Durbin claims. In 2008, Citizens United meant to broadcast a film unflattering to Hillary Clinton, then a candidate for president, but was blocked by the Federal Elections Commission, acting on rules set forth by McCain-Feingold, the notorious act restricting the when, how and wherefore of campaign spending by outside groups. Under Udall’s amendment, such a movie would represent an in-kind activity subject to regulation, and, enshrined in the Constitution, there would be no recourse for SCOTUS to set things right as it did in January 2010. In a 5-4 ruling, the on-again, off-again Supreme Court conservative majority overturned the lower courts, ruling the First Amendment means what it says about Congress making no law abridging the freedom of speech, as well as Americans having the freedom to associate (even as corporations), and to assemble for the purpose of petition. If federal law prohibited the individuals comprising Citizens United from spending money to have their movie distributed and screened, then the law was interfering with that group’s guaranteed right to associate, assemble and speak. Obviously, Udall’s proposal will never get the two-thirds votes necessary to pass out of Congress, let alone three-fourths of the states, but this monstrous threat to America’s proper and illuminating jousting of ideas makes identifying its supporters a key obligation of responsible citizens. It is to the immense credit of Florida’s Bill Nelson that he is among only 10 Democrat Senators who so far have resisted signing on as a co-sponsor. That said, when the resolution comes to the floor in the next several weeks, Nelson’s constituents will pay strict attention to whether he votes to preserve the Bill of Rights, or succumbs to the allure of absolute authority.