Friday, September 19, 2014

Democracy for All Amendment: The Battle for Free Speech Reaches the Constitutional Pinnacle

The battle for free speech in America has reached the constitutional level.

Two years ago, President Obama, frustrated over recent pro-free speech Supreme Court rulings, called for an end run around SCOTUS with an Amendment to Overturn the First Amendment. This month, congressional statists commenced efforts to grant him his wish.

S.J. Res.19, dubbed “Democracy for All”, was introduced in the Senate on Monday, September 8. The proposed amendment reads as follows:

SECTION 1. To advance democratic self-government and political equality, and to protect the integrity of government and the electoral process, Congress and the States may regulate and set reasonable limits on the raising and spending of money by candidates and others to influence elections.
SECTION 2. 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.
SECTION 3. Nothing in this article shall be construed to grant Congress or the States the power to abridge the freedom of the press.

As The Hill reported, the amendment is intended to reverse two Supreme Court rulings; Citizens United, which struck down campaign spending limits by corporations and unions, and McCutcheon, which struck down aggregate campaign spending limits by individuals.

This amendment grants governments broad powers to abridge political free speech by legally curbing campaign spending. Speech entails spending money in myriad ways; e.g., running ads on TV or radio or in newspapers. The unabridged exercise of free speech, guaranteed by the First Amendment, is inextricably linked to the right to spend one’s own money as one judges best. To restrict spending on speech is to abridge free speech.  

This amendment further seeks to limit or even forbid individuals from exercising their spending (and thus speech) rights in voluntary association with others by drawing a legal “distinct[ion] between natural persons and corporations or other artificial entities created by law.” But these entities are in fact not “created by law” but by voluntary agreement among individuals, and properly recognized by law. Entities such as corporations are voluntary associations of individuals, and to violate the rights of voluntary associations is to violate the underlying rights of the individuals involved.

Despite SECTION 3, press freedom is at risk, too. For one thing, most of the major media are incorporated entities. Second, it costs money to operate the press; e.g., a newspaper.  At it’s root, freedom of the press is freedom of speech. When a newspaper editorializes for or against a candidate, ballot referendum, or other political issue—that is, seeks to “influence elections”—it must spend money to do so. How will future legislatures and courts reconcile the government’s power to regulate, limit, or block campaign spending by corporations with freedom of the press? On what logical basis does one favor media corporations from non-media corporations? Both the NY Times and ExxonMobil are corporations. Both seek, at times, to “influence elections.” Why distinguish between the two? This amendment could become a tool of enemies of media corporations such as Ralph Nader and Noam Chomsky. Dictator Hugo Chavez undermined press freedom in Venezuela by attacking the “corporate media”.

I have only offered the briefest take on this issue, as I see it. There is much more to say on this. Essentially, this amendment transforms political speech from an inalienable right that government cannot abridge, to a privileged grant from the government, effectively overturning the First Amendment and giving the political class the power to silence its own critics.

The chance for passage is virtually nil, for now, and the Senate rejected the measure. But statists are gearing up for a long-term fight to get it enacted. This promises to be the mother-of-all free speech battles, upon which the war can very well be decided. Given the critical importance of free speech, press, and association, the highest priority should be given to exposing the sinister nature of this initiative, and strangling it in its crib. No free (or semi-free) nation can last for long under laws that place the freedom to speak one’s mind at the arbitrary discretion of government officials.

Related Reading:

Steve Simpson on Continuing Threats to Corporate Free SpeechTOS interview

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