Hearing of the Senate Judiciary Committee - Examining a Constitutional Amendment to Restore Democracy to the American People

Hearing

Mr. Chairman, I can't think of a more important hearing that the committee could hold. This hearing shows as clearly as possible the difference between conservatism and progressivism today. So let's start with First Principles.

The Declaration of Independence states that everyone is endowed by their Creator with unalienable rights that governments are created to protect. Those preexisting rights include the right to liberty.

The Constitution was adopted to secure the blessings of liberty to Americans. Americans rejected the view that the structural limits on government power contained in the original Constitution would adequately protect the liberties they had fought a revolution to preserve. So they insisted on the adoption of a Bill of Rights.

The Bill of Rights protects individual rights regardless of whether the government or a majority approves of their use.

The First Amendment in the Bill of Rights protects the freedom of speech. That freedom is basic to self-government. Other parts of the Constitution foster equality or justice or representative government. But the Bill of Rights is only about individual freedom.

Free speech creates a marketplace of ideas in which citizens can learn, debate and persuade fellow citizens on the issues of the day. At its core, it enables the citizenry to be educated to cast votes to elect their leaders.

Today, freedom of speech is threatened as it has not been in many decades. Too many people are impatient and will not listen and debate and persuade. They want to punish, intimidate, and silence those with whom they disagree. A corporate executive who opposed same sex marriage -- the same position that President Obama held at that time -- is to be fired. Universities that are supposed to foster academic freedom cancel graduation speeches by speakers that some students find offensive. Government officials order other government officials not to deviate from the party line concerning proposed legislation.

S.J. Res. 19, cut from the same cloth, would amend the Constitution for the first time to diminish an important right of Americans that is contained in the Bill of Rights. In fact, it would cut back on the most important of these rights, core free speech about who should be elected to govern ourselves.

The proposed constitutional amendment would enable government to limit funds contributed to candidates and funds spent by or in support of candidates. That would give the government the ability to limit speech. The amendment would allow the government to set the limit at zero. There could be no contributions. There could be no election spending. There could be no public debate on who should be elected. Incumbents would find that outcome to be acceptable. They would know that no challenger could run an effective campaign against them. Rationing of speech at low limits would produce similar results.

What precedent would this amendment create?

Suppose Congress passed limits on what people could spend on abortions or what doctors or hospitals could spend to perform them? What if Congress limited the amount of money people could spend on guns? Or to limit how much people could spend of their own money on health care? Should Congress limit how much people can give to charities or how much a charity can spend?

Under this amendment, Congress could do what the Citizens United decision rightfully said it could not: make it a criminal offense for the Sierra Club to run an ad urging the public to defeat a congressman who favors logging in the national forests; for the National Rifle Association to publish a book seeking public support for a challenger to a senator who favors a handgun ban; or for the ACLU to post on its website a plea for voters to support a presidential candidate because of his stance on free speech.

That should be a frightening prospect for us all.

Under this amendment, Congress and the states could limit campaign contributions and expenditures without limit, and without complying with existing constitutional provisions. Congress could pass a law limiting expenditures by Democrats but not by Republicans, by opponents of Obamacare but not by supporters.

And what does the amendment mean when it says that Congress can limit funds spent in opposition to candidates? If an elected official says he or she plans to run again, long before any election, Congress under this amendment could criminalize any criticism of that official as spending in opposition to a candidate. A senator on the Senate floor, appearing on C-SPAN free of charge, could with immunity defame a private citizen. The member could say that the citizen was buying elections. If the citizen spent any money to rebut the charge, he could go to jail.

We would be back to the days when criticism of elected officials was a criminal offense, as during the Alien and Sedition Acts. And yet its supporters say this amendment is necessary for democracy.

The only existing right that the amendment says it will not harm is freedom of the press. So Congress and the states could limit the speech of anyone except the corporations that control the media. That would produce an Orwellian world in which every speaker is equal but some speakers are more equal than others. Freedom of the press has never been understood to give the media special constitutional rights denied to others.

After years of denying it, supporters of political spending limits now admit that enacting their agenda of restricting speech may require an amendment to our fundamental charter of liberty. But in light of recent Supreme Court decisions, an amendment soon may not be needed at all. Four justices right now would allow core political speech to be restricted. Were a fifth justice with this view to be appointed, there would be no need to amend the Constitution to cut back on freedom.

Justice Breyer's dissent for these four justices in the McCutcheon decision does not view freedom of speech as an end in itself, as did our Founding Fathers. He thinks free political speech is about advancing "the public's interest in preserving a democratic order in which collective speech matters."

To be sure, individual rights often advance socially desirable goals. But our constitutional rights do not depend on whether unelected judges believe they advance democracy as they conceive it. Our constitutional rights are individual, not "collective." Never in 225 years has any Supreme Court opinion described our rights as "collective." As the Declaration of Independence states, our rights come from God and not from the government or the public.

Consider the history of the last 100 years. Freedom has flourished where rights belonged to individuals that governments were bound to respect. Where rights were collective, and existed only at the whim of a government that determines when they serve socially desirable purposes, the results have been literally horrific.

We should not move even one inch in the direction the liberal justices and this amendment would take us.

The stakes could not be higher for all Americans who value their rights and freedom. Speech concerning who the people's elected representatives should be; speech setting the agenda for public discourse; speech designed to open and change the minds of our fellow citizens; speech criticizing politicians; and speech challenging government policy are all in the nation's vital rights. This amendment puts all of them in jeopardy upon penalty of imprisonment.

It would make America no longer America. I intend to do what I can to put a stop to it, and, I urge others to do the same.

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