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The First Amendment Doesn’t Need Fixing


For centuries, the Bill of Rights has served as a bulwark for the civil and political rights of men, women and children across the globe. Within those first ten amendments to the venerable U.S. Constitution lie the foundations of free society, liberty, and the rule of law. Now, Democrats are staging an unprecedented war on the First Amendment in the first-ever attempt to amend the Bill of Rights since its enactment.

Recently, Sen. Tom Udall (D-New Mexico) and 40 other Democrats began the process to strip the freedom of speech from the pages of the Constitution. They will not succeed. Yet, the improbability of their success does not preclude the need to soundly reject their effort in the marketplace of ideas. The attempt is little more than political pageantry. Nevertheless, playing politics with fundamental rights, like free speech, is too dangerous a game to not be taken seriously by those who seek to preserve freedom for all Americans.

Udall’s Senate Joint Resolution 19 grants Congress the power to regulate, by any means necessary, the raising and spending of money and in-kind contributions in regards to federal elections. This could include capping contributions and limiting expenditures. The amendment also gives similar unprecedented power to states. In part, the law grants Congress the power to “regulate the raising and spending of money and in-kind equivalents…including limits on (1) the amount of contributions to candidates…(2) the amount of funds that may be spent by, in support of, or in opposition to such candidates.”

As a result, Udall would give Congress the power not just to limit the amount of money spent by donors on various candidates, but also limit the money candidates could spend on an election campaign. It would also grant Congress the power to limit the amount individuals, corporations, nonprofit organizations, and unions could spend independently on a campaign.

Free Speech For Elites

The proposed amendment would allow Congress to strip average citizens of their rights to engage in core political speech about issues and candidates. It is nothing short of an attempt to prevent Americans from speaking about their political views. For democrats, less speech is more important than the freedom of speech.

Interestingly, the Udall amendment claims “political equality” as its goal. Yet, restrictions on the free speech rights of corporations, such as unions, businesses, nonprofit organizations, et cetera, actually enhance the political inequality supporters of the amendment fear. Udall, and others, make the mistake of only considering corporate spending in isolation of other speech.

George Mason Law Professor Ilya Somin has pointed out how the absence of corporate speech amplifies the inequality of influence that celebrities, the super-wealthy, and media personalities have in their political speech. Reduction of speech by corporations, unions, and nonprofit organizations will, according to Somin, disproportionally increase the power of these other actors. Senate Democrats would rather Americans only listen to the New York Times or Sean Penn for their political insight instead of the wide variety of political speech Americans currently enjoy.

Money Enables Speech

To limit money, as it relates to political speech, is to limit political speech itself. Money is not speech, but money is what allows Americans to exercise their free speech rights. Money allows Americans to print flyers, pay for commercials, put up billboards and signs, fill their cars with gas to drive across the county or country, host a website, and organize disconnected individuals into a community speaking out as one. While the Left derides the use of money, they fail to understand that money is how average Americans make their voices heard.

Supreme Court Justice Stephen Breyer got it right when describing the money-speech connection. For Breyer, the First Amendment is relevant to campaign regulations “not because money is speech (it is not) but because it enables speech.” The argument from the left has reached a point of incredulity. In the much bemoaned Citizens United case, the Obama administration argued Congress should be able to ban people from printing books in advance of elections about politicians who were running for office. This goes against the core element of free speech and political speech, and is completely out of touch with the historical protections afforded in the Bill of Rights.

Campaign finance laws are detrimental to free speech not because they allow too many actors to engage in political speech, but because they allow too few actors to engage in speech. This is why the Supreme Court in Citizens United reasoned that “it is our law and our tradition that more speech, not less, is the governing rule.”

People Are People, Too

One of the other illogical arguments in favor of the proposed amendment is the tired refrain that “corporations are not people” and, as a result, do not have free speech rights. This flies in the face of well-established legal principles. People, who organize as corporations, are people too. Of course corporations are not human beings. No one has made such an argument. Yet corporate personhood is a beneficial legal construct that allows groups of individuals to organize and allows companies to be held liable in court for their bad actions.

Specifically, corporations have long been considered to possess free speech rights. The New York Times, CNN, and Random House are all corporate entities, and no one would deny their right to exercise free speech. Doing so is harmful not only to the companies that own these entities, but to the individuals who own and manage the companies themselves.

This is why the proposed amendment even carves out an exemption for those individuals and corporations who are “press.” Section 3 of the proposed amendment states, “Nothing in this article shall be construed to grant Congress power to abridge the freedom of Press.” Americans who are not fortunate enough to work for the New York Times, however, would not be granted such an exemption. Only those corporations deemed “press” qualify.

Of course, the foolish amendment contains no specification as to how senators would define the term. Recent controversy over denying well respected blogs, like SCOTUSBlog, government press credentials indicates the likelihood of a very limited definition. Citizens United was about the rights of a film maker to produce a film about a candidate before an election. Udall and his allies rejected the rights of these filmmakers. There is no reason to think they would be more tolerant of book publishers or blog writers, let alone YouTube video producers, Buzzfeed editors, and Tumbler site managers.

All Americans, not just those approved by Senate Democrats, are entitled their First Amendment free speech rights. This is a low moment for the institution of the Senate. It stands out even during an era when the Senate is already marked with depravity and lawlessness. Although there is no doubt this amendment will be unsuccessful in undercutting the First Amendment, Udall’s actions deserve strong public disapproval. Our Constitution is, as George Washington said, the guide from which we should never depart.

Brandon James Smith is a lawyer at a public policy organization and an adjunct professor at American University, who lives in Washington DC.