Hearings were held today by the Senate Judiciary Committee in relation to Senate Joint Resolution 19. Introduced last June, the Resolution proposes amending the Constitution to reverse recent First Amendment rulings by the United States Supreme Court, particularly the controversial Citizens United and McCutcheon cases.
The proposed amendment would expressly authorize Congress “to regulate the raising and spending of money and in-kind equivalents” to federal elections, concurrently authorizing states to do the same for state elections. If passed by three-quarters of the state legislatures, Congress and the states would then be able to set limits on both the number of contributions to, and the amount of aggregate funds that may be spent “by, in support of, or in opposition to such candidate.” (Emphasis added). It was precisely these aggregate limits that the United States Supreme Court found to violate the First Amendment by limiting the amount of speech an individual could engage in in McCutcheon. Seemingly innocuously, but ultimately ominously, the Resolution also provides that “[n]othing in this article shall be construed to grant Congress the power to abridge the freedom of the press.”
While the amendment has very little chance of becoming a reality, the fact that nearly 20% of the Senate introduced the measure is startling. In essence, S.J. Res. 19 would only allow government-approved journalists to editorialize during elections (see below). For example, a group such as Citizens United could not fund an advertisement in support of a particular candidate in the New York Times under the proposed amendment, but the New York Times could print a favorable editorial of the same candidate (or his/her opponent), since the proposed amendment expressly exempts “the press.”
The amendment, therefore, creates a state-approved (and, therefore, state-controlled) press. When the government prosecutes individuals for violating the statutes passed to enforce the powers granted by the proposed amendment, the state is, in effect, declaring which outlets are considered “the press,” and which are not. This is dangerous ground to tread, as any administration may take the position that a hostile outlet is not really “the press” and prosecute them (the term “prosecute” here means filing for adverse action in court, whether criminal or civil). Even if the courts reject a particular civil claim or criminal charge, anyone who has had to deal with defending charges (or IRS audits) knows that the mere possibility of years of litigation can be emotionally and financially draining.
When analyzing free speech cases, the courts frequently invoke the term: “chilling free speech.” This means that particular laws, regulations, and other government actions are designed to suppress free speech, if not expressly, then by coercive means. In essence, it would “chill,” or freeze, an individual’s ability or desire to freely speak on a topic. It is hard to imagine a scenario that fits more precisely the courts’ concerns.
Perhaps even more disturbing is the sweeping language used in the proposed amendment. Despite offering two examples, giving the appearance that this is all the amendment authorizes, the language states that “Congress shall have power to regulate the raising and spending of money . . . with respect to Federal elections, including” the enumerated examples. This means that Congress would have the ability to legally deny all individuals the ability to raise and/or spend money in support of a candidate. For example, if the amendment is passed, Congress would constitutionally be permitted to restrict raising money for elections to 501(c)(3) organizations, whom it has already approved, thus placing full discretion as to who may participate in the electoral process in the hands of the executive branch. Of course, there are many other avenues the government may take to limit political participation.
The following Senators, as well as their party affiliation, state of representation, and Washington, D.C. contact information, are as follows, should you desire to express your opinion directly to your representative:
Tom Udall (D – New Mexico): (202) 224-6621 .
Michael Bennet (D – Colorado): (202) 224-5852.
Tom Harkin (D – Iowa): (202) 224-3254.
Charles Schumer (D – New York): (202) 224-6542
Jeanne Shaheen (D – New Hampshire): (202) 224-2841.
Sheldon Whitehouse (D – Rhode Island): (202) 224-2921.
Jon Tester (D – Montana): (202) 224-2644.
Barbara Boxer (D – California): (202) 224-3553.
Chris Coons (D – Delaware): (202) 224-5042.
Angus King (I – Maine): (202) 224-5344.
Chris Murphy (D – Connecticut): (202) 224-4041.
Ron Wyden (D – Oregon): (202) 224-5244.
Al Franken (D – Minnesota): (202) 224-5641.
Amy Klobuchar (D – Minnesota): (202) 224-3244.
Mark Udall (D – Colorado): (202) 224-5941.
For further information on the effects that passage of the amendment would have and more in-depth constitutional analysis, read renowned appellate advocate Floyd Abrams’ testimony before the Senate Judicial Committee here.
If you believe your constitutional or civil rights have been violated, call our office for a free consultation at (610) 845-3803 or TOLL FREE at (888) 313-0416.