Watch the Democrats Engage in Constitutional Mischief

Proposing to change the Constitution signals that a party has no policy prescriptions.
Senate Majority Leader Harry Reid is pushing a constitutional amendment to tighten campaign-finance rules. Photographer: Alex Wong/Getty Images

The constitutional amendment on campaign finance that Majority Leader Harry Reid and many Senate Democrats are pushingis a bad idea. Even supporters of strict regulation of money in politics (and I'm not in that camp) should oppose it.

Yesterday, Reid argued for an amendment on the Senate floor, and Judiciary Committee Chairman Pat Leahy has promised a hearing. As Greg Sargent has shown, this is part of the Democratic election strategy of running against plutocrats and focusing on income inequality and economic opportunity. Whatever its merits as campaign strategy, it’s bad policy and bad for democracy.

For a detailed case, see campaign-finance scholar (and regulation advocate) Rick Hasen’s paper on bad strategies for reacting to Citizens United. 1 On the constitutional amendment path, he concludes

Given the hydraulic nature of campaign regulation, in which campaigns, parties, individuals, and groups adapt their strategies and organizational forms in an effort to circumvent regulatory frameworks, the task of enshrining durable rules into a single constitutional provision seems unlikely. Certainly none of the many attempts at drafting constitutional amendments that I have seen come close to dealing with loopholes, unintended consequences, and an appropriate balance between speech and robust debate concerns on the one hand, and anticorruption and political equality concerns on the other.

In short, drafters will either write a narrow constitutional amendment “reversing” Citizens United, which would not address many of the evils within our current campaign finance regime, or a very broad amendment, which would raise speech-squelching dangers and the potential for unintended consequences across a variety of social and political issues.

It’s usually the Republicans who engage in constitutional mischief, whether with balanced--budget amendments, term limits or marriage. Whoever is doing it, it can’t be good for the system to have people running to change the Constitution every time the Supreme Court rules in a way they don't like. Especially when the changes being proposed are in the neighborhood of infringing on the First Amendment.

The worst aspect of this kind of reaction is that it represents an irresponsible abdication of policy reaction. Saying that an impossible-to-pass constitutional amendment is the only thing that can be done is no way for a serious political party to act. It’s bad when the Republicans do it, and it’s sad to see Democrats start to follow their example.

This column does not necessarily reflect the opinion of Bloomberg View's editorial board or Bloomberg LP, its owners and investors.

  1. Just skip Section IV, where he goes after me. OK, don’t skip it, especially if you’re a regular reader here; you should be aware of the intelligent version of the case against my position on this.

To contact the author on this story:
Jonathan Bernstein at

To contact the editor on this story:
Max Berley at

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