Protecting Free Speech

Recently, many colleagues and constituents whom I greatly respect have urged me to vote Yes on a Senate resolution urging Congress to:

send to the states for ratification a constitutional amendment to restore the First Amendment and fair elections to the people.

The resolution is a response to the Citizens United case, in which the Supreme Court ruled that corporations (and, by implication, individuals) may spend as they wish to influence the outcome of an election, provided that they are spending independently instead of giving to a candidate.

I share the widespread concern about the influence of money in politics. And I recognize the unpopularity of the Citizens United decision.

I strongly support pending legislation to improve disclosure of independent spending. And in my own political campaigns I decline to accept PAC contributions and contributions from lobbyists. I also don’t do back-door corporate fundraising — the parties where corporate officers and their spouses are assembled to donate to a candidate.

However, I will not be among those voting to ask Congress to change the Constitution. I believe that the founders got it right when they authored the First Amendment:

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.

I wouldn’t change a word of that ancient American commitment to liberal philosophy. I truly believe that any constitutional process initiated for the purpose of amending that text can only do harm.

Of course, corporations are not people and money is not speech. But corporations today are an everyday form of association among people, widely used by both liberal and conservative advocacy groups as well as by businesses. And money is what it takes to disseminate speech. And political campaigns are the heart of American democracy — they are precisely what the first amendment is designed to protect.

The case law before Citizens United had become a mish-mosh of arbitrary distinctions among kinds of speech and kinds of entities engaging in speech. Citizens United, broadly understood, articulated a simple rule that people, whether organized through corporations or otherwise, can spend as they wish to disseminate their views, but may be limited in the amounts that they give directly to politicians. The court saw the limits on donations directly to politicians as justified by the public interest in controlling corruption.

There is a lot wrong with our politics today. But there has been a lot wrong with the politics of every era. We should not allow contemporary political concerns to make us forget what we’ve done right in this country. Our founders committed to the idea that the people should be allowed to engage in free speech and run presses (i.e., spend money) to disseminate that speech. That idea expresses a faith in common sense. We put our faith in the people to sort out all the noise of political advertising and eventually do the right thing.

That faith in the American people is the heart of my own personal religion and I do oppose the present well-intentioned efforts to tinker with the First Amendment.

Click here for a more detailed discussion of the Citizens United case itself. See generally this thread for a sampling of views on the issue.