Amending the First Amendment

Posted in: Constitutional Law

What would you think of a proposal to improve the Mona Lisa by, perhaps, adding a life-like firefly in the upper right hand corner? We know more about paints than in Leonardo’s day, so we could make the firefly positively glow, something he could not do. Sacrilege, you might say, and you would be right.

Now, how about improving the First Amendment? It’s only an amendment, after all. Right now, Congress is, indeed, seriously thinking of amending the First Amendment. On June 3, the Senate Judiciary Committee held a hearing on a proposed constitutional amendment, S.J.Res. 19. This proposal would give Congress and “each State” the power to impose “political equality” by regulating how much you and I could spend on, or contribute to, political campaigns. Think of political campaigns as yet another regulated industry: the regulators are—no surprise here—the incumbents. This proposal already has 41 cosponsors.

If you want to run for office, you have to spend money. Money talks. You need it to rent a hall, to rent a megaphone, to hire lawyers to guide you through the labyrinth governing campaign finance. Believe me, it is a labyrinth. I should know because until recently I was a Commissioner on the California Fair Political Practices Commission, the state version of the Federal Election Commission. I learned that, in addition to the official interpretations and regulations of our complex law, the staff had “unofficial interpretations,” what I called “underground regulations.” The unwritten law was what really mattered.

The Alarming Implications of S.J.Res. 19

S.J.Res. 19 would give political speech less protection than the First Amendment now gives to movies, novels, comic books and Nazis marching through Skokie, Illinois. What about movies that consider political subjects? Remember Fahrenheit 911, the 2004 documentary that political commentator Michael Moore directed? S.J.Res. 19 would authorize Congress or a state to ban that film. First, the language of S.J.Res. 19’s proposal to repeal the First Amendment for political speech is very broad. Second, we know that many of the supporters of S.J.Res. 19 were incensed that the Supreme Court upheld the First Amendment right of Citizens United (an organization with political views contrary to those of Michael Moore) to distribute its 90-minute documentary, called Hillary: the Movie. One movie was an attack on George W. Bush; the other was an attack on Hillary Clinton. Both are constitutionally protected, until S.J.Res. 19 becomes law.

Section 3 of S.J.Res. 19 makes clear that its intention is to limit free speech. It says, “Nothing in this article shall be construed to grant Congress the power to abridge the freedom of the press.” The First Amendment prohibits Congress from “abridging the freedom of speech, or of the press.” Tellingly, the Senators cosponsoring the “improved First Amendment” left out the phrase “freedom of speech.” Presumably, S.J.Res. 19 would only protect Jeffrey Bezos, the founder of and the new owner of the Washington Post, while the ACLU and the rest of us are out in the cold.

By the way, the Court has never distinguished between the institutional press (like the New York Times Corporation) and other persons or entities that might constitute the press, but S.J.Res. 19 will lead us into those uncharted waters. The House version, H.J.Res. 20, leaves out altogether the part about not abridging “freedom of the press.” Its language is even more emphatic that it repeals the First Amendment.

The FEC said that a feature-length movie like Hillary: the Movie is “electioneering communications.” Thus, the FEC tried to ban it. Before the U.S. Supreme Court, the ACLU filed a powerful brief warning that the Government “threatened speech that lies at the heart of the First Amendment, including genuine issue ads by nonpartisan organizations like the ACLU.”

During the first oral argument in the Citizens United case, the Supreme Court asked the Government if it claimed the power to ban books. The Government’s answer was yes: “A campaign document in the form of a book can be banned.” That was a bit of an eyebrow raiser for the Justices. The Government helpfully added, in response to a question from Justice Kennedy, it could ban Kindle or any other method used to distribute the information: “Well, the statute applies to cable, satellite, and broadcast communications.” The Court set the case for reargument and asked the parties to focus on whether the Federal Government has the same power of monarchs of old, or modern dictators—the power to ban books.

At reargument in September 2009, the Government showcased our new Solicitor General, former Harvard Dean Elena Kagan. She announced that the “government’s answer has changed.” The court transcript indicates laughter at that point, but her explanation did not draw laughs. She conceded that the FEC could not regulate books, but she that the FEC could regulate pamphlets because of their political content. “A pamphlet is pretty classic electioneering, so there is no attempt to say that [§] 441b only applies to video and not to print,” she emphasized. That’s not much of a concession.

Thomas Paine would be flabbergasted. In 1776, he published a pamphlet, Common Sense, recognized as the influential justification of the American Revolution. Paine published his pamphlet anonymously, because of fear of British censors. He would be surprised to learn that the Government he helped create has the power to ban the pamphlet that led to its creation. We have come full circle.

Modern campaign finance laws did not spring forth without any intellectual roots. The issue arose in 1947, when Congress prohibited corporations and labor unions from independent expenditures in political campaigns. President Harry Truman vetoed the law, but Congress overrode the veto, with Truman warning that this ban was a “dangerous intrusion on free speech.” Later, in United States v. CIO (1948), a union weekly newspaper endorsed a congressional candidate. The Court avoided the constitutional issue by interpreting the Labor Management Act to forbid the Government’s indictment of the CIO.

Justices Black, Douglas, and Murphy joined Justice Rutledge, concurring in the result. They reached the constitutional issue and invalidated the ban on independent expenditures. “[R]estricting expenditures for the publicizing of political views” serves to deprive “the electorate, the persons entitled to hear, as well as the author of the utterance, whether an individual or a group, of the advantage of free and full discussion and of the right of free assembly for that purpose.” (Emphasis added).

Nearly a decade later, in United States v. Automobile Workers (1957), the Court remanded for further proceedings, but Justice Douglas, joined by Chief Justice Warren and Justice Black dissented and specifically rejected the argument that the Government can restrict the independent expenditures or speech of any group because the group is too powerful. “Some may think that one group or another should not express its views in an election because it is too powerful, because it advocates unpopular ideas, or because it has a record of lawless action. But these are not justifications for withholding First Amendment rights from any group—labor or corporate.” (Emphasis added).

The Corruption Argument

Those who propose limiting campaign expenditures (a proposal that tends to help incumbents, who vote for these laws) routinely assert that those who spend the money corrupt the recipients or at least “appear” to corrupt the recipients. However, that is not what a rigorous economic study by three MIT economists concluded in an economic paper published in the Journal of Economic Perspectives:

The evidence that campaign contributions lead to a substantial influence on votes is rather thin. Legislators’ votes depend almost entirely on their own beliefs and the preferences of their voters and their party. . . . Interest group contributions account for at most a small amount of the variation. In fact, after controlling adequately for legislator ideology, these contributions have no detectable effects on legislative behavior.

Building on earlier work by Gordon Tullock, a professor of law and economics (who used to be my colleague), these economists concluded that one simply could not explain why people spend so little in political campaigns if one assumes that the givers intend to change the behavior of (corrupt) the politicians. A right to life group can give as much money as it wants to Joe Biden and that won’t change his views supporting abortion. Their extensive econometric analysis concluded that political campaign contributions are a form of consumption, like giving to the United Way, except that individuals give substantially less to politicians than they give to charity.

In over two centuries, only once have the people used an amendment to override another. In 1919, the people ratified the Eighteenth Amendment, imposing prohibition. By 1933, the people sobered up and repealed it with the Twenty-First Amendment. The Twenty-First Amendment gave back to the people the rights they had earlier. In contrast, S.J.Res. 19 and H.J.Res. 20 will take away rights that the First Amendment granted. Congress has never, ever, done that before. To tamper with the artistry of the First Amendment is akin to adding a codpiece to Michelangelo’s David, so those who think that David’s attire is too immodest would no longer be offended.