Terry Eastland | Democrats vs. Free Speech

Looking for issues to push in this year’s congressional elections, Senate Democrats are proposing a constitutional amendment that would enable government at the federal and state levels alike to heavily regulate campaign contributions and expenditures. The effort is driven by the Democrats’ intense disagreement with Supreme Court decisions on campaign finance. The amendment likely will fail, as it certainly should. As in so many areas of governance these days, liberty—here the freedom of speech protected by the First Amendment—is at stake.

The Democrats began talking up the ostensible need for a campaign finance amendment in the wake of the Supreme Court’s 2010 decision in Citizens United v. Federal Election Commission. There the Court held that the First Amendment prohibits the government from restricting independent campaign expenditures by corporations, associations, or labor unions. Now, in a case from the current term, McCutcheon v. FEC, the Court has ruled, again to the Democrats’ dismay, that the First Amendment prohibits restrictions on how much money an individual donor may contribute in total to all candidates or political committees.

The Democrats see Citizens United and McCutcheon, together with Buckley v. Valeo, the landmark 1976 case striking down restrictions on campaign expenditures, as the leading cases in a First Amendment jurisprudence that has wrongly limited the power of government to regulate campaign contributions and spending. Their amendment, drafted by New Mexico senator Tom Udall and cosponsored by 40 of his 55 Democratic (or independent) colleagues, would overrule that jurisprudence by establishing, in effect, a new Constitution for campaign finance.


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