The Silver Lining of a Very Bad Proposed Amendment

This week, Senate majority leader Harry Reid will bring to the floor an amendment to the Constitution that would permit Congress and the states to target the resources that certain people use to speak about candidates and issues at election time.   A commentator recently complained that bringing this amendment to the floor wastes the Senate’s time, because the proposal has no chance of securing the supermajorities it would need to be passed and ratified. I nevertheless would welcome a prolonged debate.

My reason is not that I favor the amendment.  Giving Congress the power to send people to jail for messaging at election time seems to me the most pernicious effort to suppress free speech by the federal legislature since the Alien and Sedition Acts.  Prohibiting expenditures on political speech curtails the opportunity for citizens to make their voices heard and for other citizens to learn what their representatives are doing. And allowing members of Congress to determine the content of such restrictions turns the First Amendment’s charter of freedom into a delegation for regulation by self-interested regulators.

But trying to pass an amendment implicitly accepts that the way to change the Constitution is to pass a constitutional amendment, not simply get the Supreme Court to say what you think the Constitution should have said.  As Mike Rappaport and I have written, one of the great costs of judicial updating of the Constitution is that it has eroded the amendment process.

A debate about a constitutional amendment reminds us that We the People, not They the Justices, are responsible for constitutional change.   Trying to pass a constitutional amendment also forces advocates of change to persuade their fellow citizens. It requires them to make deals with those who may not fully share their principles in order to get a consensus to pass an amendment. The higher politics of amendment is necessarily a politics of compromise, the opposite of winner-take-all, bare majoritarian politics that can be so destructive of social cohesion.

Finally, the debate over amendments reveals a lot about the deepest political commitments of  its proponents. For instance, this amendment has a provision that would apparently protect the press from being subject to spending strictures at election time. Thus, supporters of the amendment want to create two classes of citizens, those in the media and the rest of us. That distinction would be bad enough if those in the media had views that resembled the rest of the nation, but in fact they lean very substantially more Democratic than Republican. The Senators who support the amendment not incidentally are all Democrats.  My only fear is that the debate will be too short to show that its advocates are trying to mask an assault against liberty as high principle, when it is a partisan crusade.