Democrat Senator Proposes Undemocratic Constitutional Amendment

Published Wed, Feb 22 2012 7:01 AM

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Last November, Democrat Senator Udall proposed an amendment to the United States Constitution that would destroy the most fundamental of American freedoms—the right to freedom of speech. 

The amendment, if enacted, would enable Congress to place limits on “the amount of expenditures that may be made by, in support of, or in opposition to” candidates in federal and state elections.  The new amendment would restrain corporations and organizations in “electioneering communications”—such as pamphlets, commercials, or documentaries—whereby opinions of candidates are expressed.  By advocating for the proposed amendment, several Senate Democrats are attempting to regulate our most important freedom.

The amendment, in effect, would reverse the Supreme Court’s landmark 2010 decision in Citizens United v. FEC.  In Citizens United, the court protected freedom of speech by concluding that the First Amendment prohibited the government from limiting corporations and unions in their independent spending for political purposes.  The court found it unconstitutional for the government to suppress a non-profit corporation from releasing a documentary critical of former Senator Hillary Clinton.  (The RNLA previously discussed the aftermath of the monumental Supreme Court decision here.)

Justice Kennedy, writing for the majority, stated “Because speech is an essential mechanism of democracy—it is the means to hold officials accountable to the people—political speech must prevail against laws that would suppress it by design or inadvertence.”  

Hans von Spakovsky, The Heritage Foundation’s Manager for Civil Justice Reform Initiative, described the Court’s ruling in Citizens United as also protecting the right of people to assemble.  Mr. von Spakovsky looked at the Court’s reference to “ancient First Amendment principles,” and he correctly articulated how “[t]he Founders […] knew that the ability to associate freely (think the Sons of Liberty) and to engage in political speech without being censored by the government were fundamental rights crucial to our republic.”

Kathryn Ciano, who works for the Institute of Justice, submitted an amicus brief to the Supreme Court that was cited by the Court in Citizens United.  Ms. Ciano concludes that a constitutional amendment limiting such speech would “make it impossible for people to associate and speak more effectively and for voters to judge the messages they hear on their own.”  Ms. Ciano views the Citizens United decision as recognizing that “individuals, not the government, have the right to decide what to say and what messages to listen to.”

Last month, Supreme Court Justice Scalia heartily defended the precedent set in Citizens United.  When speaking to the South Carolina Bar, Scalia emphasized the importance of the First Amendment by declaring “I don’t care who is doing the speech—the more the merrier… People are not stupid.  If they don’t like it, they’ll shut it off.”

Despite the Supreme Court’s adamant protection of the constitutionally guaranteed freedoms, Senator Udall proposes to amend the Constitution and take the legs out from under the Court.  The misguided Senator incorrectly describes the Court’s holding, which protects the First Amendment, to be a “threat to our democracy.”  The real threat, however, would be for the government to ban people from speaking through associations that share their beliefs. 

Justice Kennedy made it clear in his opinion why this amendment must be fought.  “Premised on mistrust of governmental power, the First Amendment stands against attempts to disfavor certain subject or viewpoints or to distinguish among different speakers, which may be a means to control content.”  Senator Udall’s proposed amendment to the Constitution would give the government dictatorial control and is antithetical to the First Amendment.


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# The Republican Lawyer Blog said on Thursday, March 01, 2012 5:44 AM

Inherent in the constitutional right to free speech is the ability to keep one’s opinion from being

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