A Bold Attack On Freedom Of Political Speech In America

On September 11, 2014, the Senate voted 54-42 to end debate on Senate Joint Resolution 19.  Sixty votes were needed to end a filibuster and force a vote on the resolution.  Because the required sixty votes were not obtained, the resolution could not overcome the filibuster and it died.  Fifty four Senators, all Democrats, voted to end debate and go forward with a vote on the resolution.  Included among those 54 Senators were 48 who co-sponsored the resolution.

The point of the resolution was to propose an amendment to the United States Constitution.  Had the resolution gone to a vote, a two/thirds majority of both houses of Congress would be necessary in order to submit the amendment to the states for ratification.  In the Senate, that would require 67 votes, a number clearly unattainable since there were not even enough votes to overcome the filibuster.  That the resolution was doomed from the outset is clear.  Equally clear is that the lack of respect for the U.S. Constitution among our elected representatives is an historic problem that continues to this day.

The proposed amendment is short and easily understood.  It states in its entirety 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

The ultimate ratification of the proposed amendment by the states would have authorized governmental powers over political speech expressly denied by the First Amendment which states in its entirety as follows:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or 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.”

The proposed amendment would, by it’s express terms, empower Congress and the States to regulate raising and spending money “to influence elections”.  Because any political speech can reasonably be deemed “to influence elections”, the government would have been empowered to regulate those persons and corporations spending money on disfavored political issues while leaving others deemed by the government to be advancing more “acceptable” political positions unmolested.  Because spending money is the only reliable method to ensure that a message is widely disseminated, the amendment would have empowered the government to choose who is entitled to amplify their political messages by spending money and who is not.  It would have enabled the government to criminalize the spending of money to communicate one message, while leaving those espousing the opposite message free to spend as they wish to communicate to the public.

History has proven that it is naïve in the extreme to hope that those in power will honor the limits on their constitutional powers.  The Federal government has historically and repeatedly argued in favor of extraordinarily broad interpretations of the powers enumerated in the Constitution.  The Commerce Clause provides one of many examples.  Article One provides that Congress has the power “to regulate commerce…among the several states…”  For many years Congress used this power either not at all or in a relatively limited fashion as intended—to prevent the states from implementing protectionist trade policies against each other.  For several years leading up to the New Deal era Congress, with the approval of the Supreme Court, interpreted its powers under the Commerce Clause to regulate more than strictly commerce.  Congress began regulating labor among interstate carriers, the “channels” of commerce and the instruments of interstate commerce, such as the rail cars and railroad safety devices.

The New Deal brought a continuous flow of legislation seeking to regulate wages and industry, ostensibly pursuant to the power to regulate commerce among the states.  For a time, the Supreme Court rebuffed such unconstitutional assertions of power.  But in the end and in the wake of FDR’s effort to pack the Supreme Court in order to emplace more “progressive” jurists, the Supreme Court buckled and approved the use of the constitutional power to regulate commerce among the states to, among other things, broadly regulate labor and products regardless of whether they were implicated in interstate commerce in any direct manner.  Since 1937, the Commerce Clause has been used repeatedly to justify federal regulation of matters which are not “commerce among the several states”.  On each occasion, the Federal government has expanded it’s power over the people despite the fact that it lacks any constitutional authority to do so.

With Senate Joint Resolution 19, 48 presiding U.S. Senators expressed in clear terms their desire.  They want to regulate political speech despite the fact that the Constitution specifically denies them the authority to “abridge the freedom of speech”.  The Supreme Court has not been so availing as it was nearly 80 years earlier in turning a blind eye to the illogical and extreme contortions of the Commerce Clause.  But the question remains; what did the 48 sponsors hope to achieve by proposing the resolution?  As noted, it was doomed from the start.  What did they hope would result from proposing the resolution?

One can only conclude that they hoped to score political points with the electorate.  In the 1930’s FDR and Congress perceived that the electorate would support their efforts to expand federal power despite the lack of constitutional authority.  They used the attendant political power to pressure the Supreme Court until it finally gave in, ushering in a new paradigm of federal power.  Rather than a power limited to regulating commerce among the states, the Federal government has since wielded its power unconstitutionally over almost all things arguably deemed to affect the economy.  Those who would now eliminate our right to free political speech have apparently concluded that there is sufficient public support for their efforts to enable them to utilize the debate over the resolution as an election year gimmick to compete for votes, to create a spring board for a groundswell of popular support, or both.

Regardless of their motive, it is clear that the disregard many of our elected representatives have for the Constitution, for it’s limitations on their powers and for the protocols it establishes to ensure that the Constitution can only be amended at the will of the sovereign people is at least as problematic as it has ever been.  That 48 out of 100 U.S. Senators would support a measure to obliterate the First Amendment is a sad commentary on the status of our leadership, the level of accountability demanded by the citizenry and the diminishing measure of importance we the people place on limiting the authority of our government over us and on maintaining our popular sovereignty.







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