A constitutional obstacle to court packing would be tremendously valuable, but it might have downsides as well.
On Monday Senator Harry Reid introduced an amendment, which would permit both Congress and state legislatures to prohibit the use of resources for political speech at election time. The Republicans did not vote to filibuster it but instead by a substantial majority agreed to open debate. Senator Reid then complained that Republicans were trying to “stall” the Senate from getting to other items on his agenda. Washington has reached a new high in legislative hypocrisy: criticizing the opposition for wanting to debate an amendment that you brought to the floor!
The debate is scheduled to last the week. And nothing is more important than having a debate that brings us back to the consideration of first principles. Political theorists since Machiavelli have been absorbed by the problem of preventing the decay and corruption of the republic as its founding principles gradually recede from public view. The most important safeguard against such decline is the creation of mechanisms that naturally ventilate deep disagreements and renew the citizens’ appreciation of their republic’s first principles. Floor time for divisive constitutional amendments is such a mechanism and this one illustrates three first principles on which our two major political parties disagree.
Equality before the Law. The constitutional amendment exempts the media from congressional regulation applying to others: the press can spend as much as its wants on election time, including on endorsements. Thus, the amendment would create two classes of citizens- those in the media who cannot be regulated and other citizens who can. Making such distinctions is contrary to fundamental republican principles. To be sure, some individuals use their First Amendment rights more than others, but unequal exercise is the way of rights. They are open to all, even if they are exercised to different degrees by people.
Trusting the Benevolence of Government—Reid’s proposed amendment would allow legislators to regulate the campaign expression that may unseat them. Empowering government officials to structure the rules for their own retention is also contrary to the healthy republican suspicion of those in power. But it is consistent with Democratic party’s greater trust in the benevolence of government actors.
Spontaneous Order vs. Order Imposed by Government—The rights guaranteed by free speech rights create a continuous spontaneous order of civic discourse, including around election time. Citizens, for instance, come together in partnerships and corporations to amplify their voices and get a hearing they would otherwise not. Democracy, as the Declaration of Independence reminds us, should be dedicated to securing such rights and thus sustaining that spontaneous order. This amendment instead embodies the Progressive ideals that would trench on rights and disrupt the spontaneous order in the interest of a pattern of government enforced equality.