Two canards are put forth to justify this broad authority. First, “money is not speech.” And second, “corporations have no free speech rights.”
Neither contention bears even minimal scrutiny. Speech is more than just standing on a soap box yelling on a street corner. For centuries the Supreme Court has rightly concluded that free speech includes writing and distributing pamphlets, putting up billboards, displaying yard signs, launching a website, and running radio and television ads. Every one of those activities requires money. Distributing the Federalist Papers or Thomas Paine’s “Common Sense” required money. If you can prohibit spending money, you can prohibit virtually any form of effective speech.
As for the idea that the Supreme Court got it wrong in Citizens Unite d because corporations have no First Amendment rights, that too is demonstrably false. The New York Times is a corporation. The television network NBC is a corporation. Book publisher Simon & Schuster is a corporation. Paramount Pictures is a corporation. Nobody would reasonably argue that Congress could restrict what they say—or what money they spend distributing their views, books or movies—merely because they are not individual persons.
Proponents of the amendment also say it would just “repeal Citizens United” or “regulate big money in politics.” That is nonsense. Nothing in the amendment is limited to corporations, or to nefarious billionaires. It gives Congress power to regulate—and ban—speech by everybody.
Indeed, the text of the amendment obliquely acknowledges that Americans’ free-speech rights would be eliminated: It says “[n]othing in this article shall be construed to grant Congress the power to abridge the freedom of the press.” Thus, the New York Times is protected from congressional power; individual citizens, exercising political speech, are not.
If this amendment were adopted, the following would likely be deemed constitutional:
Congress could prohibit the National Rifle Association from distributing voter guides letting citizens know politicians’ records on the Second Amendment.
Congress could prohibit the Sierra Club from running political ads criticizing politicians for their environmental policies.
Congress could penalize pro-life (or pro-choice) groups for spending money to urge their views of abortion.
Congress could prohibit labor unions from organizing workers (an in-kind expenditure) to go door to door urging voters to turn out.
Congress could criminalize pastors making efforts to get their parishioners to vote.
Congress could punish bloggers expending any resources to criticize the president.
Congress could ban books, movies (watch out Michael Moore ) and radio programs—anything not deemed “the press”—that might influence upcoming elections.
One might argue, “surely bloggers would be protected.” But Senate Democrats expressly excluded bloggers from protection under their proposed media-shield law, because bloggers are not “covered journalists.”
One might argue, “surely movies would be exempt.” But the Citizens United case—expressly maligned by President Obama during his 2010 State of the Union address—concerned the federal government trying to fine a filmmaker for distributing a movie criticizing Hillary Clinton.
One might argue, “surely books would be exempt.” But the Obama administration, in theCitizens United oral argument, explicitly argued that the federal government could ban books that contained political speech.
The contemplated amendment is simply wrong. No politician should be immune from criticism. Congress has too much power already—it should never have the power to silence citizens.
Thankfully, any constitutional amendment must first win two-thirds of the vote in both houses of Congress. Then three-fourths of the state legislatures must approve the proposed amendment. There’s no chance that Sen. Udall’s amendment will clear either hurdle. Still, it’s a reflection of today’s Democratic disrespect for free speech that an attempt would even be made. There was a time, not too long ago, when free speech was a bipartisan commitment.
John Stuart Mill had it right: If you disagree with political speech, the best cure is more speech, not less. The First Amendment has served America well for 223 years. When Democrats tried something similar in 1997, Sen. Ted Kennedy was right to say: “In the entire history of the Constitution, we have never amended the Bill of Rights, and now is no time to start.”