September 12, 2014

First Amendment Dodges A Bullet

At first, the so-called Udall Amendment looked quite innocuous.

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 reality, though, is that the proposed constitutional amendment was anything but innocuous. It was instead a direct attack upon the political freedoms of each and every American by a subset of America’s political class intent upon holding on to its political power. Democrats, not content to allow for unlimited political speech by those with whom they disagree, were prepared to make speech about political matters less protected and less legal than speech about Kim Kardashian. Americans would have an unlimited right to speak and write and spend money to criticize Ray Rice for violently assaulting his wife, but not to speak, write, or spend money to advocate for or against candidates for office, government officials, or ballot propositions.

Frankly, this would have turned the entire concept of the First Amendment on its head. Billed as a way of keeping corporate money out of politics (it is allegedly a response to the Supreme Court’s Citizens United decision), this would have overturned nearly 40 years of jurisprudence on campaign finance regulations. Not only would it have allowed the banning of corporate political speech, it would have inevitably been used to muzzle interest and advocacy groups, voluntary associations of citizens working together to oppose entrenched interests in their own community. A neighborhood association could (and likely would) be prohibited from opposing a bond measure on a municipal ballot that residents viewed as negatively impacting the quality of life in their neighborhood while their tax dollars are used by city officials to advocate for “needed improvements of local infrastructure.” What’s more, the “reasonable limits” imposed would have had the effect of keeping an individual from using their own money to advocate for their own candidacy for office – undoing a Supreme Court precedent in Buckley v. Valeo that recognized that the right to advocate for one’s own election is a fundamental right.

Of course, there is an additional problem with this proposed (and for now rejected) amendment – it allows for the suppression of political speech (and the complete prohibition of speech by corporations) except by one sort of entity. That is, of course, “the press”. What it would have done, in effect, is turn what was designed to be a right belonging to every American into the preserve of a self-anointed corporate media priesthood. This can be seen in efforts by the Democrats to narrow the definition of “the press” in recent legislation concerning press shield laws. That effort sought to define as “press” only those who were full-time reporters who made a living from their efforts – citizen journalists and commentators like myself (or freelance writers who did not earn the bulk of their income from writing) would have been excluded from its protection. Similarly, one could expect that the New York Times or ABC News would have been deemed “press” under Section 3 of the proposed amendment while a blog like “Rhymes With Right” (run by a full time high school teacher and political activist) would be deemed to not be “press”, my expenditures to maintain the blog declared “spending” to influence an election, and my posts an in-kind contribution subject to regulation “[t]o advance democratic self-government and political equality, and to protect the integrity of government and the electoral process.” In other words, “freedom of the press” would have become the privilege of an elite (usually corporately controlled) few rather than the right of every American.

What? You say you don’t believe me? Well don’t take my word for it – consider what the ACLU had to say about the matter last summer.

To give just a few hypotheticals of what would be possible in a world where the Udall proposal is the 28th Amendment:

• Congress would be allowed to restrict the publication of Secretary Hillary Clinton’s forthcoming memoir “Hard Choices” were she to run for office;

• Congress could criminalize a blog on the Huffington Post by Gene Karpinski, president of the League of Conservation Voters, that accuses Sen. Marco Rubio (R-FL) of being a “climate change denier”;

• Congress could regulate this website by reform group Public Citizen, which urges voters to contact their members of Congress in support of a constitutional amendment addressing Citizens United and the recent McCutcheon case, under the theory that it is, in effect, a sham issue communication in favor of the Democratic Party;

• A state election agency, run by a corrupt patronage appointee, could use state law to limit speech by anti-corruption groups supporting reform;

• A local sheriff running for reelection and facing vociferous public criticism for draconian immigration policies and prisoner abuse could use state campaign finance laws to harass and prosecute his own detractors;

• A district attorney running for reelection could selectively prosecute political opponents using state campaign finance restrictions; and

• Congress could pass a law regulating this letter for noting that all 41 sponsors of this amendment, which the ACLU opposes, are Democrats (or independents who caucus with Democrats).

Now fortunately, this misbegotten amendment to limit our liberties has been defeated in the Senate due to the efforts of Republicans – not that there was any chance of it passing in the House or being ratified by 38 states. But to each of you, my fellow Americans, I have one message (one which could have been regulated or banned under the Udall Amendment) – Remember in November who sought to take your freedom away.

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