The introduction of the so-called Political Equality Amendment marks the first instance in American history where Congress has put forward a serious proposal to roll back a portion of the Bill of Rights, according to former FEC Chairman Don McGahn. By introducing this amendment, Senate Democrats have effectively admitted that what they want to do is unconstitutional: restrict campaign finance dollars. As discussed in a previous post, the proposed amendment empowers Congress to regulate campaign fundraising and spending in federal elections and it gives state legislatures the authority to regulate state races.
Three panelists examined the potential impacts of this amendment’s ratification at yesterday’s Heritage Foundation panel titled “Amending the First Amendment: Silencing Free Speech?”
As Heritage Foundation Senior Legal Fellow Hans von Spakovsky observed, the Supreme Court has ruled that campaign dollars are speech. The proposed amendment would make the Supreme Court’s decisions in McCutcheon, Citizens United, and Buckley obsolete. He illustrated these concepts by explaining that it cost money to print Thomas Paine’s Common Sense.
The proposed amendment also creates many questions about the implication of its ratification.
Will the amendment empower Congress to prohibit a labor union from communicating with its members about a candidate during an election season? Could it prohibit the NRA from sending a voter guide to its members? Would this amendment permit Congress to regulate a pastor’s sermon from the pulpit if she wishes to speak on politically relevant issues? Can Congress use this amendment to ban bloggers from writing on key issues? Can these regulations be speech selective? The panelists seem to agree that indeed this broadly worded proposal would empower Congress to regulate each of these circumstances.
As von Spakovsky notes, the proposed amendment would give Congress the power to limit the spending of individual donors. In an attempt to promote fairness, Senate Democrats have ignored the unintended consequences of ratifying such an amendment.