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May 6, 2014
RE: S. J. Res. 19: a proposal to remove First Amendment protection for political speech
The National Right to Life Committee (NRLC), the federation of state right-to-life organizations, urges you to oppose S. J. Res. 19, a proposed constitutional amendment that would cut the heart out of the First Amendment to the U.S. Constitution. It has recently been reported that the Majority Leader will bring this measure before the Senate later this year. NRLC reserves the right to include any roll call on S. J. Res. 19 in our scorecard of key roll calls of the 113th Congress.
The First Amendment of the Bill of Rights provides in part that “Congress shall make no law . . . abridging the freedom of speech, or of the press . . .” While the First Amendment applies broadly, first and foremost it was intended to provide absolute protection for the right to speak freely about those who hold or seek political power.
It is precisely that form of speech – speech about those who hold or seek offices of power in government, at the Federal or state level – that is targeted by S. J. Res. 19. Under the proposal, Congress would be granted virtually unlimited power to regulate and ration speech about those who hold or seek federal office, including both congressional and executive offices. This power would extend to “the raising and spending of money and in kind equivalents with respect to Federal elections,” including (but not limited to) “the amount of funds that may be spent by, in support of, or in opposition to such candidates.” S. J. Res. 19 also would grant to state officeholders an equivalent power to regulate “the amount of funds that may be spent by, in support of, or in opposition to” state candidates – legislative, executive, or judicial.
It is predictable that this language will be construed to encompass not only any money spent for overt appeals to vote for or against specific “candidates,” but also to disseminate speech that criticizes “candidates” or that portrays their actions or positions in a light that they find unflattering. The power to regulate and ration political speech would extend to every mode of communication – print, electronic, broadcast, internet, etc.
The power to regulate and ration would also extend to “in kind equivalents,” which could include volunteer labor, including donations of time and talent by professionals and celebrities.
“Candidates” will, of course, include all current office holders. Incumbent office holders frequently vote on matters of public controversy, and if S. J. Res. 19 were part of the Constitution, it is predictable that incumbent office holders will employ the power granted to inhibit or punish those who criticize them – especially if the criticisms are reaching an audience of any appreciable size.
Among the many incumbent-protection-racket proposals that have been put forth under the banner of “campaign finance reform,” this proposed constitutional amendment is the most ambitious power grab – a naked attempt to permanently empower the political patrician class to substantially insulate its members from criticism by and accountability to the plebeians. Perhaps a lone speaker standing on a stool in the park, upbraiding the local congressman for a recent vote, could remain outside the scope of the restrictions that would flow from S. J. Res. 19 – but if he first went to a local copy shop to buy some leaflets to draw listeners to his presentation, he could no longer rely on the protection of the First Amendment, because S. J. Res. 19 effectively removes speech about office holders and office seekers from the scope of the First Amendment. Any spending to criticize an office holder would be deemed permissible, or criminal, solely at the pleasure of those who already hold the reins of power.
It should be noted that S. J. Res. 19 contains a rule of construction asserting that it does not give Congress “the power to abridge the freedom of the press” – but this clause really constitutes a further invitation to abuse. It effectively confers on officeholders the power to define what types of media/entertainment corporations qualify for privileged status as designated “press,” and thereby presumably would retain the privilege of praising or criticizing officeholders and office seekers without limitation. For groups that advance causes that are out of favor with the “mainstream news media” or with Hollywood, the rule of construction underscores, rather than mitigates, the radical and pernicious attack on First Amendment principles that is embodied in S. J. Res. 19.
In the NRLC scorecard of key roll calls of the 113th Congress, a vote for S. J. Res. 19 will be accurately characterized as a vote to empower elected lawmakers, federal and state, to restrict and punish speech that is critical of their positions and votes on crucial public policy issues. NRLC urges you to reject the frontal assault on the First Amendment embodied in S. J. Res. 19.
David N. O’Steen, Ph.D.
National Right to Life Committee