Last week, the war on the First Amendment entered a new phase when Senate Majority Leader Harry 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.
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.
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