Don't Mess With the First Amendment

Constitutional amendment on campaign finance is a mistake.
Photographer: Pete Marovich/Bloomberg

I’ve argued that the Democrats are acting irresponsibly by pushing a constitutional amendment on campaign finance.

On the substance, I agree with Rick Hasen that it's the wrong way to go. On the politics, a serious party shouldn't focus on go-nowhere constitutional amendments, especially barely thought-out ones. It’s a way of ducking responsibility.

I’ve bashed Republicans for amendments that were chiefly intended to raise money and fool the rubes into thinking the party was being tough (on abortion, or the budget, or flag-burning, etc ...). The Democrats deserve bashing when they do the same thing.

There’s a big debate going on about whether Democrats are trying to “repeal,” “tamper with”or touch” the First Amendment. Repeal is hyperbole and overkill, but it is fair to say that an amendment that would change the First Amendment as it has been interpreted by the Supreme Court for 40 years would touch or tamper with it. Just as a flag-burning amendment would. One may believe that the restrictions are justified, or that the court has interpreted speech too broadly, but it’s still a question of adding restrictions.

On the larger issue, I’m ambivalent about the court’s money-is-speech doctrine, which means campaign expenditures cannot be limited. Whatever the logic, the idea that contributions could be regulated but expenditures could not was a workable solution. Is money speech? Not exactly … but it isn't exactly not speech, either.

After all, we certainly would recognize it as a violation of speech rights if the government decided one party couldn’t use the airwaves, or a microphone, or host a web page, or any of the other ways people use to amplify their voices, even if no restriction applied to setting up a soapbox, standing on it, and saying whatever one wanted. It may be that spending the money to purchase the means of amplification is somehow different than the amplifying itself, but that isn't self-evident.

None of which means this is an easy area. In a world with limited amplification (and yes, we still live in that world), one person’s ability to amplify amounts to a restriction on everyone else’s ability to do so. And given unequal distribution of money … well, that’s something worth thinking about.

Again, I was all in favor of the kluge (that is, the make-do compromise) of regulating contributions but not expenditures. And as I read the evidence, most people hugely overrate the effects, both in elections and in governing, of campaign-finance arrangements.

But back to the main point: Democrats aren't trying to repeal the First Amendment, but they are messing with it, and that's a lousy idea.

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