June 2, 2014
By Hans A. von Spakovsky and Elizabeth Slattery
Senate Democrats are pushing a constitutional amendment sponsored by Sen. Tom Udall, D-N. Mex., that for the first time in history would cut back on an important and fundamental part of the Bill of Rights -- the First Amendment.
Senate Joint Resolution 19 would allow Congress to limit fundraising and spending on election campaigns and independent political speech.
On May 15, Sen. Patrick Leahy, D-Vermont, chairman of the Senate Judiciary Committee, announced he would hold a hearing on the amendment -- which he resoundingly praised -- on June 3.
Its champions -- including Senate Majority Leader Harry Reid of Nevada and Sen. Chuck Schumer, D-N.Y. -- claim that restricting the amount of money that may be raised and spent on political speech and activity is not the same as limiting speech.
They insist that something must be done to stop the likes of Charles and David Koch from “rig[ging] the system” and “buy[ing] elections” -- meanwhile ignoring big Democratic spenders like George Soros and unions and their impact on elections.
But as the Supreme Court noted in 1976 in Buckley v. Valeo, “virtually every means of communicating ideas in today's mass society requires the expenditure of money.”
Bans on spending are bans on speech. The First Amendment guarantees that Congress “shall make no law ... abridging the freedom of speech,” a guarantee that some on the Left would rather shut down.
Yet the right to speak one’s mind freely is essential to maintaining a democracy, particularly because it helps to hold public officials accountable.
The Supreme Court also pointed out in its wrongly-maligned Citizens United v. FEC decision in 2010 that “it is our law and our tradition that more speech, not less, is the governing rule.”
Indeed, in a country where burning the American flag is protected under the First Amendment, surely we should encourage more, rather than less, speech about those who would run our country.
But it seems that is exactly what the 41 sponsors of this constitutional amendment want to discourage.
Though it has been described as a means of “leveling the playing field,” this proposed constitutional amendment would do no such thing.
It would permit Congress to tie the hands of candidates trying to unseat incumbent members of Congress and state legislatures as well as the hands of ordinary Americans seeking to speak their minds about elected officials and candidates and to engage in the political process.
To no great surprise, the proposed amendment includes an exemption for a mainstream media that is overwhelmingly tilted in favor of liberal candidates and liberal policies.
Thus, the New York Times and MSNBC could continue to spend as much money, newsprint, and airtime as they want supporting their preferred candidates -- or attacking those they oppose.
But associations, nonprofits, and average Americans such as Shaun McCutcheon, who recently won his case before the Supreme Court guaranteeing his First Amendment right to associate with the candidates he supports, could be strictly limited in their political activity and political speech.
Thus, the First Amendment rights of the mainstream media would be much greater than that of ordinary Americans.
Reid has promised that the Senate will take up the proposed amendment this year. The last time there was such an unabashed attempt to change the Bill of Rights and severely restrict the First Amendment rights of Americans was when Congress passed and President John Adams signed the infamous Alien and Sedition Acts in 1798.
Those measures were intended to quell political opposition and criminalize any “false, scandalous and malicious” statements “against the government.”
It is troubling that almost half of the members of the Senate are trying to shut down the free speech of Americans with whom they disagree. Luckily, they will most likely face an uphill battle in attempting to amend the Constitution.
- Hans A. von Spakovsky is manager of the Heritage Foundation's Election Law Reform Initiative and a senior legal fellow.
- Elizabeth Slattery is a senior legal policy analyst in the foundation's Edwin Meese III Center for Legal and Judicial Studies.
Originally appeared in the Washington Examiner
Hans A. von Spakovsky
Manager, Election Law Reform Initiative and Senior Legal Fellow
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