William Maurer
State Senator Steve Fischmann argues in his recent column for a constitutional amendment that “corrects the Citizens United fiasco.” If Congress and the states were to pass such an amendment, it would gut the First Amendment.
Senator Fischmann’s amendment, like those proposed by legislators like Senator Udall and Rep. Heinrich, would allow the government (of which they are members, not coincidentally) to make it a crime for any speaker they deem too influential to engage in political speech.
It would make the established press a preferred speaker, leaving media organizations like Fox News, NBC, and The New York Times able to speak while requiring citizens and associations that do not own newspapers and television stations to remain silent by force of law. It would leave unions free to speak and while the companies that employ their members will be shut out of national debate.
The problems with Fischmann’s approach
There are many things wrong with this approach. Here are just a few:
Senator Fischmann argues the First Amendment applies to speech and does not apply to the expenditure of money. This is sophistry. The protections of the First Amendment would mean little if the government could outlaw spending money on speech. Under this view, you would have the right to write a book, or compose a poem, or make a movie, but the government could make it illegal for you to publish, broadcast, or film anything because doing so would involve spending money.
In a country as large and populated as ours, allowing the government to prevent people from spending money on speech would effectively repeal the First Amendment for any communication that carries beyond the sound of one’s voice.
Moreover, if the government may constitutionally ban political spending because it is not speech, why could it not make it a crime for Democrats to spend money on advertisements but not Republicans, or vice versa? This type of manipulation of political debate – which Americans rightly condemn in other countries around the world – would be the logical end result of Senator Fishman’s attempt to grant the government the unilateral ability to define who may participate in elections.
Senator Fischmann also argues that his amendment is necessary to stop the government from granting special favors and privileges to influential contributors. But restricting the rights of Americans to engage in political activity will do little to stop the government from handing out favors.
Indeed, the laws that Senator Fischmann complains about, and many others like them, were on the books long before Citizens United was decided. The government distributes benefits and burdens because it has grown too big and does too far too much. When the government resembles a broken piñata, people will try to get some candy for themselves.
Perhaps our elected officials should first attempt to control themselves and return to a government of limited powers before they ask us to give up our constitutional rights. “Stop us before we’re corrupt again” is hardly a good reason to dismantle an amendment that has guaranteed liberty of speech and association for over 200 years.
A serious misunderstanding of the First Amendment
I could go on, but why bother? The simple fact is that Senator Fischmann, like Senator Udall and Rep. Heinrich, operate from a serious misunderstanding of the First Amendment. They assume that the First Amendment is a grant of rights, and this is where their analysis fails.
The First Amendment does not grant rights – it restricts government power. That is, it restricts the power of people like them to silence their critics or immunize themselves from challenge. It prevents the government from interfering with a right that Americans already possess, regardless of whether people act alone or in concert with one another.
The Citizens United decision correctly recognized that the words of the First Amendment – “Congress shall make no law… abridging the freedom of speech” – mean the government cannot pass a law that makes it illegal for corporations and other associations to engage in political speech. It is those like Senator Fischmann and others who want to give the government the power to decide who may engage in political speech and who may not that are “confused” about the First Amendment, not the U.S. Supreme Court.
William Maurer is an attorney with the Institute for Justice. He authored an amicus curiae brief in Citizens United that was cited in the majority decision and recently argued and won a case challenging Arizona’s system of taxpayer financing for campaigns before the U.S. Supreme Court.