First battle in the battle for the First Amendment

If there was a book entitled, “The Works of James Madison, as Rewritten by Senator Tom Udall,” few people would buy it. Madison was president, secretary of state and helped write the U.S. Constitution and the Federalist Papers. Udall (D-N.M.) is a politician who, to paraphrase Spinal Tap’s manager Ian Faith, has been far more selective in his accomplishments.

Nonetheless, Udall recently sought to rewrite one of Madison’s greatest achievements by sponsoring a proposal to amend the First Amendment. Entitled Senate Joint Resolution 19, the proposed amendment stated that in order to “advance democratic self-government and political equality,” Congress and the states would have the power to “regulate and set reasonable limits on the raising and spending of money by candidates and others to influence elections,” including the ability to “distinguish between natural persons and corporations or other artificial entities created by law, including by prohibiting such entities from spending money to influence elections.”

{mosads}The Senate Judiciary Committee approved the proposal this past summer, but a procedural vote by the Senate on September 11 ended the effort.

The effort was clearly a political stunt designed to rally Democratic voters who hate the Supreme Court’s decision in Citizens United.  There was no chance that the amendment would get the constitutional minimum of 67 votes in the Senate, and even if it did, it had no chance in the Republican-controlled House.  Even then, three quarters of the states needed to ratify it. 

Nonetheless, in politics, what starts off as impossible can become inevitable. The proponents of the measure point out that the average time it takes to amend the constitution to overturn a Supreme Court decision is more than fifteen years. So, even if this particular effort was ultimately doomed, the leadership of a major political party is now on record favoring a rewrite of the First Amendment. So, what happens if Udall eventually gets his way?

The amendment seemed modest. Under it, the government could limit how much one can contribute to a campaign and how much those campaigns can spend. The first restriction is already law. It is the second restriction that would radically change the rules.

Restricting how much money Americans can spend on political speech limits gives the government the power to say, “You have spoken enough. You must stop speaking now.” This command will come with the threat of fines or imprisonment. Make one yard sign too many and you commit a crime. 

Defenders argue that the amendment did not limit speech; it limited money and money is not speech. True enough, as far as that goes. But this is a heavily populated country; people need money to produce and distribute almost all communications. Restricting how much one can spend on speech means that the government can restrict all speech that carries beyond the sound of your voice.

The amendment also permitted the government to distinguish between a “natural person” and “other artificial entities created by law.” The goal here is to silence oil companies and the like, but organizations like the Sierra Club and the NAACP are also corporations. The amendment did not distinguish between for-profits and nonprofits (even though these specific organizations foolishly support this effort to silence themselves). And corporations are not the only “artificial entities created by law.” So are marriages, rock groups and neighborhood associations. Under this proposal, the government would have had the power to silence millions of Americans because they banded together to speak.

The proposal prohibited the government from abridging “the freedom of the press.” The press thereby became special citizens, with more freedoms than others, which would have likely lead to licenses for the “official” press. Goodbye, bloggers.  

In Politico, Sen. Charles Schumer (D-N.Y.) and Rep. Ted Deutch (D-Fla.) dismissed these concerns as hyperbole. No constitutional right is absolute, they say; doesn’t the government ban child pornography and libel? But these forms of speech actively harm a third party. Political speech conveys information about who will lead us. 

Limiting political speech is not “democratic self-government.” It is paternalism. The proponents of this measure say they are not defeated and that they intend to push this amendment or something like it until they succeed. There are many countries where distributing too many political messages can land a person in jail. Thanks to James Madison, the United States is not one of them—at least not yet. 

Maurer is an attorney with the Institute for Justice, which litigates nationwide in the defense of free speech