While much of Washington grapples with international crises, chronic economic troubles and upcoming midterm elections, Senate Democrats are steadily pushing forward with what they hope will become the 28th Amendment to the U.S. Constitution.
The proposed amendment would give Congress authority to regulate every dollar raised, and every dollar spent, by every federal campaign and candidate in the country. It would give state legislatures the power to do the same with state races.
Framed by Senate Majority Leader Harry Reid as a response to campaign spending by the conservative billionaire Koch brothers, the proposed amendment, written by Democratic Senators Tom Udall and Michael Bennet and co-sponsored by 42 other Senate Democrats, would vastly increase the power of Congress to control elections and political speech.
The problem is, Democrats aren't quite sure exactly what the amendment should say. In a move that received virtually no attention, they recently rewrote the measure -- and in the process revealed its fatal flaw.
This is the heart of the amendment as originally written by Udall and Bennet:
"To advance the fundamental principle of political equality for all, and to protect the integrity of the legislative and electoral processes, Congress shall have power to regulate the raising and spending of money and in-kind equivalents with respect to federal elections, including through setting limits on --
"(1) the amount of contributions to candidates for nomination for election to, or for election to, federal office; and
"(2) the amount of funds that may be spent by, in support of, or in opposition to such candidates."
There are literally no limits to congressional power in those words. In the name of "political equality for all," Democrats proposed to change the Constitution to allow lawmakers to impose any restriction they want on campaign fundraising and spending -- in other words, on campaigning itself.
Republicans characterized the Udall-Bennet amendment as a clear infringement of First Amendment free speech rights, as well as a particularly naked power-grab by Congress. Democrats responded that the proposed measure was in fact a reasonable response to the "problem" of money in politics, represented in their view by the Kochs.
"We need to make sure that there are reasonable, common-sense limitations in place to prevent wealthy special interests from tarnishing our democratic process," Democratic Sen. Dick Durbin said in a June 18 meeting of the Judiciary Subcommittee on the Constitution.
To show how reasonable the measure is, Durbin proposed a new wording for the amendment. This is the heart of the revised version:
"To advance democratic self-government and political equality, and to protect the integrity of government and the electoral process, Congress and the States may regulate and set reasonable limits on the raising and spending of money by candidates and others to influence elections."
The big difference is the insertion of the word "reasonable," which Democrats apparently believe will allay concerns about government overreach. Don't worry -- we'll be reasonable!
But who decides what is reasonable? "I tell you, I am not content to have your free speech rights protected by the reasonableness of members of Congress, Republicans or Democrats," Sen. Ted Cruz said to Durbin. "I have more faith in the Bill of Rights than I do in any elected officials." There was a time, Cruz noted, when the U.S. Congress thought the Alien and Sedition Acts were reasonable.
Cruz also reminded the subcommittee that political speech can involve movies and books, and that corporations -- the bad guys in so much Democratic rhetoric -- include not only Koch Industries but organizations like the NAACP, the Sierra Club and the Human Rights Campaign.
"Under the text of this amendment, could Congress ban political movies?" Cruz asked Durbin. "Could Congress ban books? And would it be constitutionally permissible for Congress to prohibit the NAACP from speaking about politics?"
"What we are talking about is reasonable, content-neutral regulation," an exasperated Durbin responded. "What the senator has suggested in his parade of horribles, going back to your logic course -- reductio ad absurdum -- is not going to carry the day in this debate, nor with the American people."
"Are you willing to answer any of those questions yes or no?" asked Cruz.
"If you are going to reduce this to the absurd, we will be here for another hour and a half," said Durbin.
"Should we be able to ban movies?" Cruz persisted. "Yes or no? What is absurd about asking that question?"
"No," Durbin said, "and there is nothing about banning movies in this amendment." With that, Durbin pounded the gavel and declared, "The subcommittee stands adjourned."
Democrats passed the amendment; that was never in doubt. But the little-noticed debate showed that with a proposal as far-reaching and deeply troubling as this constitutional amendment, inserting the word "reasonable" doesn't make it so.
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