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A Constitutional Right to Incumbency? | Commentary

Imagine if, 20 years ago, Congress had passed a law limiting each car manufacturer or retailer to spending no more than a certain amount per year on research and development or expanding its operations. Large, established institutions like General Motors or Walmart might have done just fine. But startups like Tesla and would never have been able to make the capital-intensive investments to get off the ground, and consumers would have been worse off for it.

Today, the Senate Judiciary Committee will hold a hearing on S J Res 19, a proposal to amend the U.S. Constitution to allow Congress and state legislatures to pass exactly this type of law when it comes to how much money politicians, their critics, and their supporters may raise and spend in appealing to voters about who may wield the lawmaking power in the first place. Specifically, the proposed amendment language would authorize limits on “the amount of contributions to candidates” for elective office, as well as “the amount of funds that may be spent by, in support of, or in opposition to such candidates.”

Perhaps it is fitting that the sponsor of this proposal is Sen. Tom Udall, D-N.M., the scion of a political dynasty that stretches back more than 100 years and includes his cousin Sen. Mark Udall, D-Colo., his father, former Secretary of the Interior and Rep. Stewart Udall, D-Ariz., and his uncle, former Rep. “Mo” Udall, D-Ariz. It is thus also ironic that Sen. Udall’s amendment declares that its purpose is “to advance the fundamental principle of political equality for all.”

If, by “political equality,” Sen. Udall means a playing field that would favor an entrenched political establishment at the expense of newcomers, challengers, and critics, then his amendment is certainly apropos. While forcing every candidate to abide by the same spending limit may seem “equal” on the surface, it is not hard to see how someone like Sen. Udall, who has a name recognition and political network established over four generations in power, would still start far ahead of any challenger under such a regime. These same advantages generally would exist for all incumbents, who enjoy the privileges of communicating with their constituents at taxpayer expense, and regularly appearing before public audiences and in news stories by virtue of their status as public officials.

All this is not to suggest that our laws should tilt to the opposite extreme by trying to compensate for every advantage and disadvantage a candidate may face. After all, some politicians are more charismatic, articulate, or photogenic. To focus on the less superficial, some politicians also are more competent or experienced, or have better policies and ideas, and are thus more worthy of support, whether it is in the form of campaign contributions or votes. The purpose of the law shouldn’t be to legislate or constitutionalize “political equality.” Rather, the law should stand back so that the candidates, parties, and advocacy groups can duke it out in the court of public opinion and the voters can decide.

In the campaign finance reform liturgy, the quest for equality is often accompanied by the reduction of corruption. Thus, the second purported aim of Sen. Udall’s amendment is “to protect the integrity of the legislative and electoral processes.” Over the last forty years of campaign finance jurisprudence, limits on how much contributors may give to a politician generally have been accepted as a legitimate means to prevent corruption. But limits on spending have never been justified on such pretexts, and for good reason. Suppose the publisher of Ralph Nader’s “Unsafe at Any Speed” had been limited by law as to how much it could spend to publish his exposé of the auto industry’s wrongdoing. Under what anticorruption theory could such spending limits possibly be defensible?

If candidates, political parties, and advocacy groups are limited in how much they may spend to expose their adversaries’ malfeasance, then the media will be left as the public’s primary source of such information. Naturally, Sen. Udall’s amendment provides that “[n]othing in this article shall be construed to grant Congress the power to abridge the freedom of the press.” Thus, it seems that, under the amendment’s mantle of “political equality,” some speakers are more equal than others. But if there is one thing that critics like Noam Chomsky on the left and Brent Bozell on the right both agree on, it is that the media cannot necessarily be relied on as an impartial source of information.

While Sen. Udall is probably well-intentioned in sponsoring his constitutional amendment, its effects cannot be ignored. Quite simply, the proposal would limit political speech, thereby favoring the political and media establishment and undermining the very core of our constitutional structure.

Eric Wang is a political law attorney and Senior Fellow with the Center for Competitive Politics.

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