It could be restricted or banned under a constitutional amendment Democrats have proposed.
The Senate Judiciary Committee yesterday approved by a 10–8 vote a constitutional amendment that, if passed, would functionally eliminate the political rights of speech and association. While the committee made the language more succinct than in its original iteration, the law still poses a profound threat to fundamental liberties.
For instance, Congress probably would have the power to ban religious sermons and church literature.
Section 1 of the amendment permits Congress and the states to “advance democratic self-government” — whatever that means — “and political equality” by “regulat[ing] and set[ting] reasonable limits on the raising and spending of money by candidates and others to influence elections.”
Section 2 specifically permits the federal and state governments to “distinguish between natural persons and corporations or other artificial entities created by law, including prohibiting such entities from spending money to influence elections.”
And section 3 — in a perfect demonstration that the eight Judiciary Committee members who are lawyers, yet voted for the measure, failed to pay attention in law school — claims to prevent anyone from reading the amendment in such a way as “to grant Congress or the States the power to abridge the freedom of the press.”
The First Amendment, as drafted by men such as Fisher Ames and James Madison, protects five freedoms: speech, press, assembly, petition, and religion. The newly minted constitutional amendment mentions only one of those as being untarnished — “press.”
Under a longstanding principle of statutory interpretation — expressio unius est exclusio alterius — the explicit naming of one member of a class means that the other members of that class are excluded. So, under this amendment, as long as the interests of “democratic self-governance” and “political equality” are “reasonably” at issue, Congress or the states may infringe on speech, assembly, petition, and religious freedoms.
There’s honestly no limit to the number of examples of “reasonable” restrictions that could be drawn under this amendment, but let’s discuss a particularly troubling one.
Section 2 allows Congress to explicitly ban corporations or other associations from spending money to influence elections — but Lord only knows what “influencing elections” actually means. (To give you an idea, a surprising number of states, even with the protections of the current First Amendment, seem to believe it includes saying the name of a candidate a couple of months before an election, regardless of context.) Many places of worship incorporate as nonprofit entities. Worse, section 3 explicitly puts the religion clauses up for grabs.
Do you know of any churches, mosques, or synagogues that discuss current events? Maybe they sometimes discuss the morality of war? Maybe, sometimes, candidates running for office are associated with a current war? Congratulations! A message from your priest, imam, or rabbi might actually be — to use a campaign-finance term — the “functional equivalent” of virtually any presidential campaign conducted in the 21st century. And because religious organizations are often incorporated, I certainly hope that the messages being delivered advance “democratic self-governance.”
Lest you think this is crazy, the state of Montana did go after a church for allegedly violating campaign-finance laws just a few years ago. The church in question was an “incorporated religious institution” whose pastor aired a simulcast of an anti-same-sex-marriage religious broadcast during the same time he allowed a member of his church to “place[] roughly twenty copies” of an anti-same-sex-marriage petition in the church’s foyer.
The Ninth Circuit overruled the effort of the state of Montana to declare the church an “incidental” PAC. But this ruling was only because of the First Amendment’s requirement that Montana’s regulations must pass a heightened form of analysis. If the case had turned on mere “reasonableness,” as the new amendment allows, or even “political equality” — the church probably did not show the pro-same-sex-marriage side of things — the outcome could well have been different.
And of course, this same principle applies to the other non-press freedoms protected by the First Amendment. Lobbyists (petition) and protest groups (assembly) would have to make certain that they were acting in the interest of “political equality.”
(It’s worth noting that supporters of this amendment probably believe that the protection of “the press” is really a protection of institutional media corporations, such as the New York Times Company or MSNBC. But the Supreme Court has repeatedly disavowed such an interpretation of the Press Clause — so it is entirely unclear whether any protections would actually attach to media corporations. Apparently none of the amendment’s drafters have cracked open a con-law book.)
The First Amendment was the product of careful thought and cautious deliberation by some of the greatest political minds of the 18th century. This amendment, even as shortened by the Judiciary Committee, and while undoubtedly undertaken in good faith, still represents a shoddy, unserious, intellectually bankrupt piece of work.
It should be soundly defeated and never, under any circumstances, resurrected.
— Zac Morgan is a staff attorney at the Center for Competitive Politics.