Could constitutional amendment reverse Citizens United?


By Eric Boehm |

Unless everyone can speak equally, all must be silenced equally.

That seems to be the thinking behind the latest push for campaign finance restrictions, which would limit all Americans’ First Amendment rights to impose controls on how much money can be given to candidates for office.

NO LIMITS: After Citizens United, states and the federal government can no longer limit campaign contributions from unions, corporations or individuals. But some Democrats in Congress are trying to change the Constitution to make such limits possible again.

The U.S. Senate Judiciary Committee last week approved a resolution that’s a first step toward a possible constitutional amendment removing First Amendment protections from campaign contributions.

The first line of the amendment says its purpose is “to advance the fundamental principle of political equality for all, and to protect the integrity of the legislative and electoral processes.”

It goes on to say both the federal government and state governments would be allowed “to regulate the raising and spending of money and in-kind equivalents.”

Our elections no longer focus on the best ideas, but the biggest bank accounts, and Americans’ right to free speech should not be determined by their net worth,” said U.S. Sen. Mark Udall, D-New Mexico, who sponsored the resolution.

It’s a long way from a done deal, but the proposed amendment is essentially trying to short-circuit the argument that state and federal campaign finance laws violate the First Amendment by placing limits on American’s speech when it comes to political contests.

In short, it’s the latest effort to overturn the Citizens United decision and other rulings in the Supreme Court and lower courts that lifted limits on campaign spending. It was on those First Amendment grounds that the landmark Citizens United decision was won.

Hans von Spakovsky, a senior legal fellow at the Heritage Foundation who studies campaign finance issues, said the amendment would be rather unique if it manages to someday become part of the U.S. Constitution.

“Every amendment passed through the U.S. Constitution has been to expand and protect the rights of Americans — probably the only exception being Prohibition and of course that got reversed,” Von Spakovsky told Watchdog Radio this week. “This would be the first time in our history that part of the Bill of Rights would attempt to be amended and restricted.”

It’s not just conservative groups — who have championed the Citizens United decision, even though liberal groups have actually been some of the biggest spenders on campaigns — questioning the rationale of the proposed amendment.

In a letter to members of Congress, the American Civil Liberties Union, or ACLU, said the amendment endangers civil rights and liberties for generations to come.

The Udall proposal would “severely limit the First Amendment, lead directly to government censorship of political speech and result in a host of unintended consequences that would undermine the goals the amendment has been introduced to advance — namely encouraging vigorous political dissent and providing voice to the voiceless, which we, of course, support,” wrote ACLU director Laura Murphy.

But it seems Democrats are preparing to use the amendment as another populist campaign tool this year. Already, the head of the Democracy Alliance, a progressive campaign group, has touted the amendment as a way to accomplish liberal policy goals in Washington.

Gara LaMarch, president of the Democracy Alliance, told supporters recently that overturning the Citizens United decision was necessary before progress could be made on issues such as global warming and gun control, according to the Washington Free Beacon.

Moving to amend the constitution is at least a tacit acknowledgment from the left that the courts have settled the question of campaign finance and regular legislative attempts to impose stricter limits on political speech won’t fly.

The amendment is a long way from adoption. The committee approved it on a party-line — 10-8 — vote and would need 12 Republicans to support it to pass the U.S. Senate. Even if that were to happen, the House would probably kill it.

But that doesn’t give much comfort to those silenced by the proposed change.

“This is a clear and obvious attempt to silence those who might be critical of liberals and liberal ideas,” said Von Spakovsky.

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