Commentary: Will This Be Our Last Free Election? (October, 2014)

by Rob RoperRob Roper

On Sept. 11, 54 U.S. senators voted along party lines to amend the U.S. Constitution so as to essentially do away with the First Amendment. The effort to pass S.J. Res. 19 was led by, among others, Bernie Sanders, and it’s worth noting that the Vermont General Assembly passed resolutions in support.

It’s disappointing that this occurred without much media coverage, let alone outrage. Perhaps this is because most believe it to be little more than a political stunt by Democrats with no chance of actually passing. But that so many elected officials believe that holding a torch to the Bill of Rights could be in any way an advantageous political act – and the fact that they might not be mistaken — is truly terrifying.

What’s at stake here is whether or not we in America now think it’s a good idea to empower incumbent politicians with limitless authority to control, criminalize, and prosecute the activities of their political opponents. If this amendment were to pass, it would create the foundation for a police state.

Calls for this new amendment come in the wake of the Citizens United case, in which the U.S. Supreme Court struck down a law banning corporations and unions from making independent, election-related expenditures. While frustration with money in politics is understandable, the proposed “solution” goes far beyond tamping down corporate/union spending.

This amendment says, “… Congress and the States may regulate and set reasonable limits on the raising and spending of money by candidates and others to influence elections.” Not corporations. “Candidates” — the people who run against incumbents. And “others” – which is anybody whom the incumbents decide it is. What are “reasonable limits”? What constitutes “influence?” Again, whatever the incumbents imagine it to be.

This amendment says, “Congress and the States shall have power to implement and enforce this article by appropriate legislation, and 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.”

They “may” distinguish between natural persons and corporations. They don’t have to.

And, it’s not just corporations, but “other artificial entities created by law.” As it is, this could mean almost anything. But, even currently non-formal groups of citizens could be forced via “appropriate legislation” to register in some way with the state, thus becoming an “artificial entity created by law.” For example, in Vermont today any group of two or more citizens spending $1,000 (one full page ad in the local paper) in a two-year election cycle must, by law, register as a PAC – an artificial entity created by the state. Then incumbent politicians could “… prohibit such entities from spending money to influence elections.” How much money? Apparently any money!

Lastly, the amendment says, “Nothing in this article shall be construed to grant Congress or the States the power to abridge the freedom of the press.” This was clearly put in there to buy the support, or at least the silence, of the media. It appears to have worked, even though this may be the most radical aspect of the resolution.

Today, every U.S. citizen has the right to freedom of speech, to say what’s on our minds, and of the press, to distribute those opinions via mass media. This amendment would change that, empowering incumbent politicians to decide who has — and who does not have – access to mass media.

The New York Times Corp. would likely be permitted to print editorials and endorsements calculated to influence elections, but another entity attempting to buy an ad in the Times expressing the same or the opposite opinions could be deemed criminal. Incumbent politicians would be empowered to draw this distinction, thus picking who can speak through mass media, and who cannot.

So, in this brave, new post-amendment world, does a blogger have an inalienable right to freedom of the press? Does a radio talk show host? A nonprofit? Does a group of concerned citizens sending out a letter, or putting an ad in the paper or forming a Facebook group? No. You would need permission from the incumbents, either explicit or tacit, to express your opinion in any way that might influence their re-election.

Our founding fathers understood something about the nature of politicians and the corrupting temptations of power. That is why the first thing they wrote to secure our liberty in the Bill of Rights is, “Congress shall make NO LAW (emphasis added) … abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”

They knew if politicians were given even an inch, they would use it as a launching pad for miles of abuse. Our current so-called leaders have proven that judgment correct.

- Rob Roper is president of the Ethan Allen Institute

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The Ethan Allen Institute is Vermont’s free-market public policy research and education organization. Founded in 1993, we are one of fifty-plus similar but independent state-level, public policy organizations around the country which exchange ideas and information through the State Policy Network.

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