Free Speech for People We Like Amendment

In a Reddit chat last week, President Obama sort of called for a constitutional amendment to reverse Citizens United v. Federal Election Commission.

Let’s call it the “Free Speech for People We Like Amendment.”

We are in the midst of one of the most clearly defined, crisply debated presidential campaigns this country has seen in generations. Is there mudslinging? You bet, and the president’s side is slinging its fair share. But there is real contrast in the two tickets’ position on issues, and a fully articulated, thoroughly discussed range of reactions to those positions from American citizens and others around the world. Voters get to choose.

Thanks to Citizens United, corporations and labor unions are free to join that debate by paying for advertisements to share their views, either individually or collectively. This, by the way, is all Citizens United did; it did not directly authorize super PACs, which are the product of a different Supreme Court decision. The president’s side has a supportive super PAC; so does his opposition. Jim Messina, Obama’s campaign manager, pointed out himself that the president’s campaign must “face the reality of the law as it currently stands.”

Corporate and super PAC voices have not damaged the election process; they are simply a set of views among many. True, the unaffiliated money that is aligned with Romney’s campaign but not controlled by it has negated the president’s own big fund-raising advantage. Without the super PACs, the president, who had no primary opponents, would be in a position to handily outspend Romney, which is how he would prefer to run for office. It is how any politician would prefer to run. The president just seems to think there should be a constitutional amendment guaranteeing any incumbent president this advantage.

Obama knows there is no chance of passing such an amendment. Robert Weissman, the president of a group dedicated to the idea, told The Washington Post, “I think everyone understands that winning a constitutional amendment is an uphill fight and a long-term struggle.” For the president, this is just wedge-issue rhetoric designed to motivate his voter base.

It is even possible that Obama might one day want to return to teaching constitutional law. I suspect his antipathy to Citizens United is widely shared among American university and law school faculty, but Barack Obama has never been one to get too far in front of any issue – especially one as fraught as tampering with the Bill of Rights. So his Reddit comment was not exactly a clarion call to action. The leader of the free world told his online audience that we should “seriously consider mobilizing a constitutional amendment process to overturn Citizens United (assuming the Supreme Court doesn’t revisit it).”

So we don’t actually need an amendment. We just need to seriously consider mobilizing a process.

More chilling, however, is Obama’s call in the same Reddit discussion to prohibit “the bundling of campaign contributions from lobbyists.” Not the contributions from his own top fundraisers – the kind from whom the president raises millions of dollars in contributions over a single dinner of rubber chicken. Those are just citizens exercising their right to be politically active. But lobbyists, meaning anyone paid to represent a view in front of the government, seemingly have less right – or should have less right – to participate in the political process, as far as Obama is concerned.

Maybe he can carve out an exception for lobbyists that represent environmental groups or Planned Parenthood. If you plan to restrict free speech only to your friends, you need to keep an accurate list of them.

All of the arguments against Citizens United continue to ring hollow. Nobody is buying votes. No voter has the slightest difficulty learning where candidates stand on the issues, to the extent the candidates themselves know and are willing to share this information. Yes, the barrage of negative ads is annoying and designed to sap the enthusiasm of the other side’s supporters. (And, in Obama’s case, it’s designed to try to disqualify his opponent in voters’ eyes so as to prevent the election from becoming a referendum on the incumbent’s performance.) But candidates have a right to say what they want to say about one another, and we all have a right to say what we want about the candidates.

We also have a right to hear what others have to say – even corporations and labor unions. Citizens United is only about speech, and there isn’t a shred of evidence that “too much speech” is hurting American freedom.

A “free speech for friends” amendment would be another story. But don’t worry. We have a constitutional law teacher in the White House. He might want to seriously consider mobilizing a process, but he wouldn’t actually support stripping a core element of the Bill of Rights just for political advantage. Right?

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