Commentary: A Renewed Attack on the First Amendment (August, 2019)

by John McClaughry

The 2010 Supreme Court decision in Citizens United v. FEC unleashed a rhetorically violent attack from the Left, notably including Gov. Peter Shumlin and Vermont’s three members of Congress.

In that case the Court overturned part of a 2002 campaign finance law known as BCRA. The Court held that “the government may not suppress political speech based on the speaker’s corporate identity”. That is, whether the citizens spoke as individuals or through a corporation, nonprofit advocacy group or  labor union.

Interestingly, had the BCRA restrictions been upheld, the free speech losers would have included, along with business corporations, advocacy groups such as VPIRG, Planned Parenthood, the Sierra Club, the Vermont-NEA, and the Vermont Workers Center, all stalwarts of the political left.

Nonetheless the Left shouted that with the campaign finance restrictions struck down, Big Money would come flooding in to further corrupt the political arena. “Overturn Citizens United!” became a demagogic plank in every left wing platform. Only the American Civil Liberties Union, usually on the Left, balked on principle, declaring “the ACLU will firmly oppose any constitutional amendment that would limit the free speech clause of the First Amendment.”

As it turned out over the next nine years, striking down BCRA’s offensive provisions has made little difference in the volume of money flowing into influencing elections, the great bulk of which does not come from corporations. Both the libertarian billionaire Koch brothers (who did not support the election of Donald Trump) and left wing billionaires George Soros, Michael Bloomberg and Tom Steyer have spent and are spending billions to influence national politics and elections – billions that they could legally have spent before the Court’s decision.

The only sure way to overturn Citizens United was and is to enact a supervening constitutional amendment. That was attempted in 2014, but the measure fell far short of the required 2/3 vote in the Senate. Now, in the run up to the 2020 elections, the Democrats in the Senate – all of them – are peddling the 2014 proposal yet again.

Section 1 of their “Democracy for All” Amendment authorizes Congress and the states to “regulate and set reasonable limits on the raising and spending of money by candidates and others to influence elections.” This would allow a future left wing Congress to revive and strengthen BCRA, thus vitiating the Citizens United case and putting politicians in charge of the First Amendment.

It would however go further. It would overturn Buckley v. Valeo, the 1976 case in which the Court held that governments cannot limit how much of their own money individual citizens can independently spend to advance their political beliefs, including their own candidacies, “restrictions that the First Amendment cannot tolerate.”

Section 2 adds that legislators “may distinguish between natural persons and corporations or other artificial entities created by law, including by prohibiting such entities from spending money to influence elections.” Thus a right wing legislature in say Alabama could bar efforts to influence elections by the NAACP, and a left wing legislature in Oregon could bar similar efforts by the free market Americans for Prosperity. Unlike section 1, there is no requirement that such prohibitions be “reasonable”, whatever a court might find that word to mean.

Section 3 contradicts the first two. It reads “nothing in this article shall be construed to grant Congress or the states the power to abridge the freedom of the press.” But for this section, restrictive laws could be passed to silence political opinion from corporation-owned CNN and Fox News, or the Wall Street Journal or New York Times.

Jacob Sullum of Reason.com writes of this shameful and dangerous political stunt that it would “restore the health and integrity of our campaign finance system…only if ‘health and integrity’ require muting some voices so that others may be heard. But that goal is plainly at odds with freedom of speech and freedom of the press.”

Of course the Democracy for All (sic) Amendment cannot pass either House or Senate any time in the foreseeable future, because every Republican is commendably against it. But it’s a disgrace to every (Democratic) sponsor who, solely for crass political purposes, put his or her name to destroying the First Amendment of the Bill of Rights.

John McClaughry is vice president of the Ethan Allen Institute (www.ethanallen.org).

 

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