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Milbank: No need to amend the Bill of Rights
First Published Jun 04 2014 09:48 am • Last Updated Jun 04 2014 09:48 am

WASHINGTON • I agree with Ted Cruz.

Before you stick a thermometer in my mouth or suggest that I up my meds, let me assure you that much of what the Texas Republican said at Tuesday’s Senate Judiciary Committee hearing was just as wacky and reckless as usual.

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Cruz alleged that Democrats, in proposing a constitutional amendment to limit campaign contributions, "support repealing the First Amendment," would "abandon the Bill of Rights," were seizing "the power to ban books and to ban movies," and favored "politicians silencing the citizens."

But somewhere amid the hysteria, the hyperbole and the hyperventilation was a good question from the tea party demagogue. "Where are the liberals today?" Cruz asked. "Why is there not a liberal standing here defending the Bill of Rights and the First Amendment?"

Democrats should be asking that of themselves.

The motive behind the amendment is praiseworthy: reducing the ability of billionaires to buy elections, a right they have enjoyed since the Supreme Court, in the Citizens United and McCutcheon cases, outlawed virtually all restraints on spending. But rewriting the Constitution is an inelegant — and dangerous — way of fixing this very real problem.

A better solution was inadvertently floated at Tuesday’s hearing by Sen. Chuck Grassley, R-Iowa, an opponent of the amendment, who noted (disapprovingly) that there are four justices who "would allow core political speech to be restricted. Were a fifth justice with this view to be appointed, there would be no need to amend the Constitution."

This is true. And for those concerned about money corrupting democracy, finding a fifth justice is easier than assembling the supermajorities needed for an amendment. In a sense, the system is self-correcting: If Republicans continue on their current course, they’ll eventually hand Democrats a liberal majority on the Supreme Court.

The Koch brothers and other conservative billionaires may be able to buy a Republican Senate majority this year. They have already been able to stack the primary process in favor of conservatives in the House, where Republicans have a majority even though more votes were cast for Democrats in the last election.

But Koch billions can’t have the same impact in a presidential race, where spending is well past saturation. And at the rate Republicans are alienating Latinos, single women and young voters — due in part to far-right lawmakers whose seats have been bought with unchecked contributions — there may not be another Republican president for some time. If Hillary Clinton holds the presidency for two terms after President Obama, Justices Antonin Scalia and Anthony Kennedy would turn 89 the year she leaves office.

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For Democrats, the amendment is less a serious proposal than a bid to make Citizens United and the Koch brothers prominent issues in 2014. Underscoring that point, hundreds of supporters of the amendment overflowed from the extra-large hearing room Tuesday, making their points with signs, T-shirts and symbolically taped mouths.

Mitch McConnell of Kentucky, the Senate Republican leader who testified with his Democratic counterpart Harry Reid of Nevada, avoided demonstrators by arriving late and entering through a back door. McConnell said Democrats had "walked away from the First Amendment" and were giving the government power over speech "reminiscent of the Alien and Sedition Acts." Tough talk, but as Reid pointed out, McConnell himself proposed a similar constitutional amendment (in 1987), giving Congress power to put limits on independent expenditures and on personal funds used to run for office.

In theory, it’s serious business whenever lawmakers talk about rewriting our founding text. But nobody seemed to be taking the prospect very seriously. Reid presented the committee with a personal hygiene report from his last three campaigns. In 1998, "I felt so unclean," but "when I ran in 2004 it was like I’d taken a bath and I felt so clean. ... And then comes 2010, back into the sewer."

The one who made the most sense was Cruz, who quoted two liberals, Ted Kennedy and Russ Feingold, opposing similar amendments in the past. The Texan cited Kennedy saying, in 1997, "We have never amended the Bill of Rights, and now is no time to start."

Cruz isn’t defending anybody’s liberty; he’s championing oligarchy. But his efforts will be undone, and the Supreme Court reshaped, by the very democratic process the oligarchs are trying to subvert, long before any constitutional amendment is adopted.

Twitter: @Milbank

Copyright 2014 The Salt Lake Tribune. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.

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