Last week, the war on the First Amendment entered a new phase when Senate Majority Leader Harry Reid announced his support for S.J. Res. 19, a proposed constitutional amendment designed to “advance the fundamental principle of political equality for all, and to protect the integrity of the legislative and electoral processes.” The intent of the proposed amendment is to empower the Congress and the States to limit all categories of campaign-related spending and contributions and overturn the Supreme Court’s decision in Citizens United, which held independent political expenditures by businesses and unions alike to be protected by the First Amendment.
In plain English that’s called censorship. It’s also called hypocrisy, as many of the proposed amendment’s supporters—and most of its likely opponents—take a situational stance on the First Amendment.
More often than not, politicians think free speech is a fine thing so long as you agree with them. What do I mean? Well, in 2006 the then-Republican-controlled Senate failed by a single vote to move forward a proposed constitutional amendment that would have given Congress the legal authority to ban flag “desecration.” Fortunately, the Constitution mandates that a proposed amendment obtain the backing of two-thirds of both the House and Senate before it can be sent to the States for ratification, and the flag-burning amendment garnered only 66 of the 67 votes it needed.
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But here’s the thing. Back then, many of the same folks who would stifle free speech if it comes in the form of money—but not in kind, as in the form of a favorable New York Times editorial—had no problem saying that it was constitutionally OK to put Old Glory to the test by putting it to the torch. The roster of Senate Democrats suffering from First Amendment schizophrenia includes former constitutional law professor and Senator Barack Obama, Joe Biden, and senior Senate Democrats Barbara Boxer, Tom Harkin, Barbara Mikulski, Patty Murray, Chuck Schumer, and Ron Wyden—who rightly took the position that free speech should not be diluted in the name of some greater good, hurt feelings, or offended sensibilities.
And to be sure, it’s not that the Senate Republicans have a sterling record on free speech. It too is predictably abysmal. Eight years ago, only three Republicans opposed the flag-desecration amendment, and only one, Senate Minority Leader Mitch McConnell, still serves. Former Senator Jim DeMint, a self-proclaimed defender of freedom, liberty, the Second Amendment, and Heritage Foundation honcho, voted for the amendment, along with six-of-seven of Northeast Republicans.
At least the Senate’s two leaders, Reid and McConnell, are consistent in the broader scheme of things. Reid is censorious and McConnell is libertarian. Reid supported the anti-flag-burning amendment then and backs S.J. Res. 19 now, while McConnell said “no” in 2006, and will say “no” a second time.
As befits a former Nevada Gaming Commission chair, Reid does have his blind spots about certain donors and their speech and donations. According to Reid, campaign activism by the Koch Brothers is evil, while mega-dollar independent expenditures by Las Vegas casino mogul Sheldon Adelson and environmental activist Tom Steyer possess a hygienic quality lacking by the likes of the Kochs.
Don’t take my word for it; here’s Reid uncensored: “I know Sheldon Adelson… He’s not in this for money… He’s in it because he has certain ideological views. Sheldon Adelson’s social views are in keeping with the Democrats on all kinds of things. So Sheldon Adelson, don’t pick on him. He’s not in it to make money.”
For the record, Adelson is the same guy who once said that he regrets having served in the U.S. Army, who lost a $60 million defamation lawsuit against the National Jewish Democratic Council, and whose company admitted to having likely violated the Foreign Corrupt Practices Act for allegedly bribing Chinese officials in connection with gambling operations in Macau.
Yes, the rise of independent donors as a driving political force should give us plenty of pause. But big donors are a reality of modern politics, and, like it or not, money and campaign spending are forms of protected political speech, as the Supreme Court ruled almost 40 years ago in Buckley v. Valeo.
Without the checkbook of the deep-pocketed late Stewart Mott, George McGovern may not have been the 1972 Democratic nominee; without George Soros’s campaign donations and ready-made Moveon.org infrastructure, Barack Obama would have needed to have dug deeper into his own campaign’s resources to build and hone his 2008 ground game.
So what to do? As a small step, candidates of all parties should take a page from George W. Bush’s campaign playbook, and report their campaign contributions in real time. If sunlight really is the best disinfectant and Obama, Reid, and Schumer are truly concerned about the effects of money in politics, they should call for all candidates to disclose donations within two business days of receipt, just as corporations are required to report trades by their insiders to the Securities and Exchange Commission. They could even lead by example.
The technology for rapid reporting is already there, so there is no reason why it shouldn’t be used. Already, candidates and campaigns are required to periodically disclose contributions, so it’s just a matter of when, and sooner is better than later.
As for corporations, they are not people; sorry, Mitt. But their officers and shareholders do get hit up by the very same politicians who decry corporate involvement in politics. Take Schumer, for example. He strongly criticized the Supreme Court’s decision in Citizens United as the “worst decision” since Plessy v. Ferguson, where the Court gave constitutional sanction to segregation, and held that separate was equal.
Since 2009 Schumer has raised more than $22 million, with the lion’s share coming in the form of large individual contributions and PAC money, and with the single biggest industry source being the financial sector. To crystalize things, Schumer raked in more than $140,000 from Paulson & Co., the folks who made billions betting on the U.S. housing crash. As a New York Times headline once blared as it described Schumer, “A Champion of Wall Street Reaps Benefits.”
So when Democrats decry money in politics are they really being serious, or are they just posturing? One thing’s for certain, money isn’t leaving politics anytime soon. As long as government is around, and politicians need their palms greased, money will be there as well. Meanwhile, Democrats and Republicans alike will drape themselves in the Constitution and the flag, except when it gets in their way.
