According to 46 Senators, 'Political Equality' Means Some People Have More Freedom of Speech Than Others


Yesterday, as Damon Root noted, the Senate Judiciary Committee approved a resolution proposing a constitutional amendment designed to facilitate the regulation of political speech. That is not how the amendment's supporters describe it, of course. According to Section 1 of the amendment, the aim is to "advance the fundamental principle of political equality for all." But what sort of political equality are we talking about?

It is not equality under the law or the principle of one man, one vote, both of which the Constitution already protects. Instead it is something like equality of political influence, meaning that people should not, by virtue of superior financial resources, have an edge in promoting the causes and candidates they favor. That is why the amendment gives Congress the "power to regulate the raising and spending of money and in-kind equivalents with respect to Federal elections." This power includes, but is not limited to, imposing limits on campaign contributions, campaign spending, and independent spending in support of or in opposition to candidates for office. As the Supreme Court has repeatedly recognized, restrictions on spending amount to restrictions on speech, because you cannot get your message across to a mass audience without spending money. The amendment—which was introduced by Sen. Tom Udall (D-N.M.) and has 45 cosponsors so far, all of them Democrats—effectively appoints the federal government as moderator of the national political debate, with the power to determine who has spoken too much and who deserves a turn. 

The amendment's sponsors understand that, which is why they included Section 3: "Nothing in this article shall be construed to grant Congress the power to abridge the freedom of the press." Without that proviso, Congress could impose a spending limit on Fox News or The New York Times to curtail what many people perceive as undue influence on the political debate. But freedom of the press is not limited to professional journalists. In the context of the First Amendment, "the press" refers to a technology of mass communication, not to a privileged subset of the people who use that technology. Nowadays "the press" encompasses not just books and periodicals but also TV, radio, and the Internet. The First Amendment guarantees everyone the freedom to use those media, whether he is an employee of an officially recognized news organization,  an independent blogger, a billionaire ideologue, or an activist pooling his resources with those of likeminded citizens. Properly understood, Section 3 swallows the whole amendment.

That is not the intent of the amendment's backers, of course. What they have in mind is a legal regime in which certain speakers are legally privileged while others are subject to minute regulation aimed at ensuring that they do not exercise undue influence, as determined by legislators and bureaucrats—all in the name of "political equality."