Seeking to undo the Supreme Court’s decision in Citizens United, ex-House Speaker Nancy Pelosi and other House Democrats are pushing an amendment to the Constitution that would take away First Amendment protections for corporations and unions:
House Minority Leader Nancy Pelosi on Thursday endorsed a movement announced by other congressional Democrats on Wednesday to ratify an amendment to the U.S. Constitution that would allow Congress to regulate political speech when it is engaged in by corporations as opposed to individuals.
The First Amendment says in part: “Congress shall make no law … abridging the freedom of speech, or of the press…”
Television and radio networks, newspapers, publishing houses, movie studios and think tanks, as well as political action committees, are usually organized as, or elements of, corporations.
Pelosi said the Democrats’ effort to amend the Constitution is part of a three-pronged strategy that also includes promoting the DISCLOSE Act, which would increase disclosure requirements for organizations running political ads, and “reducing the role of money in campaigns” (which some Democrats have said can be done through taxpayer funding of campaigns).
The constitutional amendment the Democrats seek would reverse the Supreme Court’s 2010 decision in Citizens United v. Federal Election Commission. In that decision the court said that the First Amendment protects a right of free speech for corporations as well as for individuals, and that corporations (including those that produce newspapers, films and books) have a right to speak about politicians and their records just as individuals do.
“We have a clear agenda in this regard: Disclose, reform the system reducing the role of money in campaigns, and amend the Constitution to rid it of this ability for special interests to use secret, unlimited, huge amounts of money flowing to campaigns,” Pelosi said at her Thursday press briefing.
Corporations and unions are and should be protected under the First Amendment, meaning that the Supreme Court got it right in Citizens United. This has been an odd line of attack from President Barack Obama and Democrats who have not only lied about what the decision in the case does, but are also attacking businesses that engage in the political process.
While they insist that corporations aren’t individual, this really misses the point since they are comprised of individuals united in some sort of common interest or issue. Additionally, the effects of such a constitutional amendment could theoretically be used to shut down newspapers or other media outlets, given that they are corporations, if they put out stories critical of public figures. You may dismiss this, but Eugene Volokh notes that Rep. Jim McGovern (D-MA) has acknowledged it would apply to all corporate entities:
So just as Congress could therefore ban the speech of nonmedia business corporations, it could ban publications by corporate-run newspapers and magazines — which I think includes nearly all such newspapers and magazines in the country (and for good reason, since organizing a major publications as a partnership or sole proprietorship would make it much harder for it to get investors and to operate). Nor does this proposal leave room for the possibility, in my view dubious, that the Free Press Clause would protect newspapers organized by corporations but not other corporations that want to use mass communications technology. Section 3 makes clear that the preservation of the “freedom of the press” applies only to “the people,” and section 2 expressly provides that corporations aren’t protected as “the people.”
Congress could also ban the speech and religious practice of most churches, which are generally organized as corporation. It could ban the speech of nonprofit organizations that are organized as corporations. (Congressman McGovern confirms this: “My ‘People’s Rights Amendment’ is simple and straightforward. It would make clear that all corporate entities — for-profit and non-profit alike — are not people with constitutional rights. It treats all corporations, including incorporated unions and non-profits, in the same way: as artificial creatures of the state that we the people govern, not the other way around.”) Congress could ban speech about elections and any other speech, whether about religion, politics, or anything else. It could also ban speech in viewpoint-based ways.
The name of the proposal, the “People’s Rights Amendment,” may sound rather harmless, but there is no denying that it would change free speech, a fundamental civil liberty, in the United States for the worse.
I seriously doubt that Congress will ever pass such an amendment, but Democrats are again tipping their hand at what they plan to run on in the fall campaigns and they’re making no attempt to hide their contempt for free speech.