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The Senate has taken up a bill that that would amend the Constitution in order to restore the regulation of campaign spending that was largely undone by two Supreme Court decisions. The goal is commendable but the approach is wrong.
The amendment would reduce the unrestrained ability of billionaires to influence candidates and elections that the court's 5-4, Citizens United and McCutcheon decisions handed to them. Its passage would have a similar impact on well-funded labor unions, businesses and political action committees.
It sounds good but it could have consequences that far outweigh its initial benefits because it would constitutionally place limits on the First Amendment for the first time in our history. As the late Sen. Ted Kennedy said, in opposing an amendment to ban flag burning, "No generation of Americans has ever reduced the scope of the Bill of Rights, though the temptation has been great."
This bill, introduced in the Senate and cosponsored by 35 Democratic senators, including both Sens. Richard Blumenthal and Christopher Murphy, would do just that, reduce the scope of the First Amendment by allowing lawmakers to regulate "the raising and spending of money and in-kind equivalents" with respect to elections.
It's our opinion the Congress had that right. The U.S. Supreme Court by 5-4 margins disagreed. That is the way the system works. To try to overturn these decisions by messing with the Constitution would be a dangerous mistake.
Fortunately, it has no chance of passage because the Founders saw to it that amending the Constitution isn't easy. Although there have been scores of amendments introduced, only four have made it into the Constitution in the past 50 years because an amendment must be approved by two-thirds of the House and Senate before it faces ratification by a minimum of 38 states.
Along the way, the process has seen the rejection of amendments that would have mandated a balanced federal budget, set term limits for Congress, permitted school prayer and banned abortion, the death penalty and same-sex marriage, among dozens more.
So why are the Senate Democrats pushing this particular amendment when congressional action on campaign and election reform is a more viable alternative?
In researching various legal and scholarly views on amending the Constitution to overturn the two decisions, we were taken with an observation by Monica Youn of the NYU Law School's Brennan Center.
"It's a lot easier for politicians to back an unlikely constitutional amendment than to back reforms to change their own fund-raising," Ms Youn wrote. "Even in the post-Citizens United era, there are reforms that are within reach and that would make a difference - such as greater disclosure, public financing, regulatory reform and a Federal Elections Commission overhaul."
As noted in prior Day editorials, passage of a tough federal disclosure law would be a good start. The public should at least know the identities of the corporations, special interest groups and individuals involved in funding a candidate or attacking a candidate in the hope of gaining future influence.
Instead, we have the Democrats, nationally and in Connecticut, using the decisions to their advantage. Gov. Dannel P. Malloy called it "fighting fire with fire" when his legislative majority weakened campaign finance laws by doubling the amount individuals can give parties. While this "reform" ostensibly benefits both parties, those seeking influence gravitate to the party in power and so far, that's been the case.
Contractors and others doing business with the state are being encouraged to give to national party accounts that get around a state law prohibiting donations from those getting state business, a law that was passed in the wake of the Rowland scandals. Both the state's Democratic and Republican Parties have these separate accounts, which means both are thumbing their noses at the law passed after widespread corruption in state contracts scandal were uncovered not that long ago.
Introducing legislation to repeal the 2002 federal law that allows such contractor contributions would be a more meaningful effort for either of our senators than grandstanding for a constitutional amendment that won't happen.
Democratic senators defending the proposed amendment point out the First Amendment is not absolute, that there are laws against child pornography or shouting "fire" in a crowded theater that limit free speech. Laws, yes, but not constitutional amendments.