Political posturing trumps the First Amendment. That is the clear message being sent by at least 15 senators who, less than a decade ago, were some of the most ardent opponents of a flag-burning constitutional amendment.
Now, with an election on the horizon, some senators have proposed a constitutional amendment that would give Congress the ability to control essentially all political speech, from how many billboards a candidate can buy to how many hours you can spend going door-to-door.
Forty-three senators are co-sponsoring the amendment, S.J. Res. 19, which was originally introduced by Sen. Tom Udall, D-N.M.
The proposal was the subject of a June 3 Senate Judiciary Committee hearing that featured testimony from both Senate Majority Leader Harry Reid of Nevada and Senate Minority Leader Mitch McConnell of Kentucky.
The amendment, introduced under the auspices of making political races more “equal” by controlling who can spend money in federal and state elections, will undoubtedly and quite purposefully have the chilling effect of limiting First Amendment rights.
These types of restrictions would have outraged some of these same senators only eight years ago.
Consider, for example, what current Udall amendment co-sponsor Sen. Dick Durbin, D-Ill., said when speaking against a proposed flag-burning amendment in 2006:
“The Bill of Rights has served this nation since 1791, and with one swift blow of this ax, we are going to chop into the First Amendment.”
Durbin chided those who thought they could do better than the Founding Fathers, remarking “so many of my colleagues are anxious to take a roller to a Rembrandt.”
He wasn't alone. Sen. Barbara Boxer, D-Calif., now a co-sponsor of the Udall amendment, said this in 2006:
“This Constitution is more than just an outlet for our justifiable frustrations. It is concise. It has worked. It is the enduring ideal of our nation, and we should not unnecessarily amend it.”
Sen. Barbara Mikulski, D-Md., explained her opposition to the flag desecration amendment by saying, “I cannot support an Amendment to the United States Constitution which would, for the first time in our nation's history, narrow the reach of the First Amendment guarantee of freedom of speech.”
Where once there was humility, now there is hubris. Senators Durbin, Boxer, and Mikulski are all co-sponsors of the Udall amendment that narrows the reach of the First Amendment.
The delusion that Congress can improve on the 45-word eloquence of the First Amendment is apparently contagious.
Udall, who also voted against the flag amendment then, announced last summer, “I am proud to be introducing this amendment to change the way we do business in Washington and get money out of a broken system that puts special interests over people.”
That kind of evergreen political rhetoric is no substitute for constitutional analysis. Famed First Amendment attorney Floyd Abrams offered his opinion of the Udall amendment at a hearing on the measure, saying it “would shrink the First Amendment and in doing so set a precedent that would be both disturbing and alarming.”
Reid, who has supported other flag-desecration amendments, recently said of the Udall proposal that "we’re going to push a constitutional amendment so we can limit spending because what is going on today is awful.”
But what is going on today is just that citizens, empowered by Supreme Court rulings upholding speech rights, are speaking out in higher volumes, and many incumbent politicians dislike it.
Sponsors of the Udall amendment used to have more backbone in the face of criticism. Boxer wisely observed in 2006 that “in a great country like the United States of America, you don't fear dissent. In a great country you allow dissent ...”
Sen. Tom Harkin, D-Iowa, another co-sponsor of the Udall amendment, observed during the previous flag desecration amendment debates that the Bill of Rights “has stood unchanged for more than two centuries, despite Civil War, Depression, two world wars, and powerful internal movements of dissent. Even at those times of profound turmoil, we resisted any temptation to amend the Bill of Rights.”
Yet all it took for Harkin and other Udall amendment co-sponsors to abandon this view of the Bill of Rights’ resilience was for citizens to spend some money on political speech.
Profound turmoil, indeed. They also must have abandoned the former view of Mikulski, who said during the flag desecration amendment debates, “we cannot change the culture by changing the Constitution. We change the culture by living the Constitution, by speaking out responsibly and by organizing. I support amendments to expand the Constitution, not constrict it.”
A lot has changed over the years. Instead of trying to change the culture by speaking out and organizing, now 43 Senators are trying to change the Constitution to prevent people from speaking out and organizing.Luke Wachob is the McWethy Fellow at the Center for Competitive Politics.