Floyd Abrams , noted constitutional scholar and attorney for the successful plaintiff in Citizens United, testified before the Senate Judiciary Committee last week to warn Senate Democrats about the dangers of their proposed Political Equality Amendment. The proposed amendment would empower Congress to regulate campaign fundraising and expenditures and limit speech in a “sweepingly broad manner.” Abrams went on to say that, “the notion that democracy would be advanced – saved, ‘restored’ – by limiting speech is nothing but a perversion of the English language.” He observed:
It is not some sort of coincidence that until today no decision of the Supreme Court affirming First Amendment rights has ever been overruled by amendment. Emotions have run high before about decisions of the Supreme Court which provided a higher level of protection of liberties set forth in the Bill of Rights than many in this body would have thought appropriate. Self-restraint on the part of enough members of this body carried the day and no constitutional amendment followed. This proposed amendment, S.J. 19, would shrink the First Amendment and in doing so set a precedent that would be both disturbing and alarming.
Abrams explains that the text of the proposal states:
“[T]hat it ‘relate[s] to contributions and expenditures intended to affect elections.” That’s one way to say it, but I think it would have been more revealing to have said that it actually “relate[s] to speech intended to affect elections.” And it would have been even more revealing, and at least accurate, to have said that it relates to limiting speech intended to affect elections. And that’s the core problem with it. It is intended to limit speech about elections and it would do just that.
After the Court has afforded First Amendment protection to a particular type of speech, it, “has never been transformed, via a constitutional amendment, into being unprotected speech and thus a proper subject of criminal sanctions.”
According to Abrams, this amendment would reverse and reject the, “central teaching of Buckley that Congress may not, for the asserted purpose of ‘equalizing the relative ability of individuals and groups to influence the outcome of elections,’ limit the spending and hence the speech of those who wished to participate in the political process by persuading people who to vote for or against and why.”
In regards to incumbency, Abrams says, “the amendment will create countless David versus Goliath bouts, with Goliath allowed to make up the rules of the game as it goes along.”
Abrams concluded by posing this question to Senate Democrats, “whether you are prepared to take the extraordinary . . . step of amending the Constitution to assure that less in the way of First Amendment protection should be afforded than the Supreme Court has held was warranted?”