Extremism: Senate Democrats versus the First Amendment

The 48 senators proposing to give legislators speech-regulating powers describe their amendment in anodyne language, as “relating to contributions and expenditures intended to affect elections.” But what affects elections is speech, and the vast majority of contributions and expenditures are made to disseminate speech. The Democrats’ amendment says: “Congress and the states may regulate and set reasonable limits on the raising and spending of money by candidates and others to influence elections,” and may “prohibit” corporations — including nonprofit issue-advocacy corporations (such as the Sierra Club, NARAL Pro-Choice America and thousands of others across the political spectrum) from spending any money “to influence elections,” which is what most of them exist to do…

Floyd Abrams, among the First Amendment’s most distinguished defenders, notes that the proposed amendment deals only with political money that funds speech. That it would leave political speech less protected than pornography, political protests at funerals, and Nazi parades. That, by aiming to equalize the political influence of people and groups, it would reverse the 1976 Buckley decision, joined by such champions of free expression as Justices William Brennan, Thurgood Marshall and Potter Stewart. That one reason President Harry Truman vetoed the 1947 Taft-Hartley Act was that he considered its ban on corporations and unions making independent expenditures to affect federal elections a “dangerous intrusion on free speech.” And that no Fortune 100 corporation “appears to have contributed even a cent to any of the 10 highest-grossing super PACs in either the 2010, 2012 or 2014 election cycles.”