The Freedom to Speak and Participate in Elections

One of the rights we should celebrate (and cherish) during Liberty Month is freedom of speech.

Another is our ability to freely choose our representatives in local, state and federal elections.

Freedom to speak on public policy issues as well as on candidates and politics is directly related to the election process. Indeed, that freedom is essential to the integrity and security of elections.

But that First Amendment right has been under sustained attack for several decades.

Congress has imposed restrictive campaign finance rules that interfere with Americans’ ability to speak in the political arena, run for office, and associate with others who hold similar views.

The First Amendment has been under particular attack in the last five years with the unfair, ill-informed assaults—some coming from President Obama himself—on the U.S. Supreme Court’s 2010 decision in Citizens United.

In Citizens United, the Supreme Court threw out a federal ban on independent political expenditures, by unions, corporations, and nonprofit membership associations like the NAACP and the Sierra Club. Independent political expenditures amount to nothing more, nor less, than independent political speech.

The Court’s ruling restored a vital part of the First Amendment that had been taken by a law originally vetoed by Harry Truman, who called it a “dangerous intrusion on free speech.” Before the Court set matters right, pornographers had more free speech rights than associations, corporations and unions.

Criticism of independent political speech is decidedly odd. Organizations unhappy with the Court’s decision harp on the idea that the Bill of Rights protects only individuals.

Yet none of these carping voices questioned that the First Amendment protects media corporations, whose right to free speech was upheld by the Supreme Court in 1964 in New York Times Company v. Sullivan.

If the Bill of Rights applies only to individuals, then no organization would enjoy other Constitutional protections, like the Fourth Amendment right against warrantless searches or the Fifth Amendment right against the seizure of private property without “just compensation.”

This would leave them completely at the mercy of the government. The Feds would be free to search the internal records of a union like the AFL-CIO or a company like Google upon a mere whim or to nationalize the assets of any outfit—for any reason or no reason at all—without having to compensate its owners or stakeholders.

This perilous view reached its zenith last fall when every single Democratic U.S. senator voted in favor of a constitutional amendment that would allow Congress to restrict anything that could in any way “influence elections.”

The proposal would give the federal government virtually unlimited power to abridge the core political speech and associational rights of Americans. Simply put, it would gut the First Amendment. It is truly frightening that such a proposal could receive so many votes. It demonstrates that too many of our leaders—including those who have sworn to uphold the Constitution—are prepared to put our precious right to speak freely, to participate in our democratic election process, at serious risk.

Unfortunately, in its most recent decision on elections, the Supreme Court ignored the clear text of the Constitution to approve an election change that reduces the accountability of government in the election process.

This June, in Arizona State Legislature v. Arizona Independent Redistricting Commission, the Court threw out a claim by the Arizona state legislature challenging a ballot proposition that stripped the legislature of its redistricting authority.

The referendum transferred that authority to a supposedly independent redistricting commission although, as Chief Justice John Roberts noted in his dissent, this commission was not so “independent” in practice.

This transfer clearly violated the Elections Clause of the Constitution, which gives redistricting authority to the “Legislature” of each state. Yet the majority of the Court denied that the term “Legislature” really means “Legislature.” It was an astonishing opinion—and not just because it effectively rewrote the Constitution. The ruling approved the transfer of a power that directly affects elections from an elected body to an unaccountable government bureaucracy. No matter how much we complain about gerrymandering and the politicized redrawing of legislative districts, legislators who engage in such behavior are answerable to the people in elections. The bureaucrats appointed to these commissions are not. No matter how unhappy you may be about the way they draw the districts, you can’t vote unelected commissioners out of office.

The Constitution and the Bill of Rights as written guarantee our liberty, freedom, and economic opportunity. We should celebrate those guarantees rather than try to rewrite, limit, or impede them.

 - Hans A. von Spakovsky is a Senior Legal Fellow at The Heritage Foundation.

About the Author

Hans A. von Spakovsky Manager, Election Law Reform Initiative and Senior Legal Fellow
Edwin Meese III Center for Legal and Judicial Studies

Originally appeared in The Washington Times