I just received an email from an activist I admire greatly, urging me to support Move To Amend, an amendment that would attempt to reverse the damaging impact of the Citizen's United Supreme Court case.
But sadly, I believe the amendment as written could be worse than the disease. As written, its advocates admit that the amendment would strip nonprofit groups and unions of first amendment protections. It would mean that we would only have first amendment rights as atomized individuals, but the organizations we join to make any kind of real difference would be stripped of First Amendment protections. If passed, this could be a nightmare.
As written the amendment says:
Section 1. [Artificial Entities Such as Corporations Do Not Have Constitutional Rights]
The rights protected by the Constitution of the United States are the rights of natural persons only.
Artificial entities established by the laws of any State, the United States, or any foreign state shall have no rights under this Constitution and are subject to regulation by the People, through Federal, State, or local law.
The privileges of artificial entities shall be determined by the People, through Federal, State, or local law, and shall not be construed to be inherent or inalienable.
Section 2. [Money is Not Free Speech]
Federal, State, and local government shall regulate, limit, or prohibit contributions and expenditures, including a candidate's own contributions and expenditures, to ensure that all citizens, regardless of their economic status, have access to the political process, and that no person gains, as a result of their money, substantially more access or ability to influence in any way the election of any candidate for public office or any ballot measure.
Federal, State, and local government shall require that any permissible contributions and expenditures be publicly disclosed.
The judiciary shall not construe the spending of money to influence elections to be speech under the First Amendment.
I'm not a lawyer, and maybe I'm reading this incorrectly. But the MoveToAmend folks, in their
FAQ, admit that
Our perspective is that no "artificial entities" - non human beings - should have rights spelled out under the Constitution. This includes unions and non-profit corporations.
Rights do not come from government, we have them because of the very fact that we are alive - they are inalienable. Given that, government does not actually have authority to grant rights to entities created by law. Certain powers and privileges may be needed and desired for certain entities over others, but not constitutional rights.
Non-profits do serve a different function than that for-profit corporations, as do unions. But these powers and privileges need to be spelled out legislatively - through a democratic process - not granted by the legal system under the Constitution.
As written, the amendment could seem to have a devastating impact on the free speech rights of organizations such as the National Organization of Women, NAACP, Greenpeace, NARAL, War Resisters League, labor unions, cooperatives, etc.
It seems to me almost like the writers of the amendment targeted nonprofits (Citizens United was itself a nonprofit group. Sure it's one that many of us almost always disagree with, but the first amendment at its best protects the speech we agree with and the speech we don't).
The FAQ says that protecting the free speech rights of unions and nonprofits would no longer have 1st amendment protection but would depend on the legislative process. What do we imagine would happen to the rights of unions, feminists, anti-racist groups, anti-war groups, environmental organizations, and other nonprofit groups, absent first amendment protections, in those states where paleo-Republicans currently have majorities in both chambers of the legislature and the governorship?
The amendment explicitly says, "The privileges of artificial entities shall be determined by the People, through Federal, State, or local law, and shall not be construed to be inherent or inalienable." So, the amendment explicitly gives a green light to cities or states to strip organizations of speech they disagreed with, and we couldn't argue that we have an inherent or inalienable right to this speech.
What could happen to free speech rights, say, of pro-choice groups and Planned Parenthood, in several states currently and at the national level if Republicans hang on to both houses of Congress and win the white house?
The reality is that to make a difference, we need to have more than an a privatized, individual, atomized right to free speech. We need to join together to make our voices heard. This amendment as written seems to authorize banning the only kind of speech that makes a difference - speech which we join together to express.
I don't believe that those of us who are liberals, progressives, and/or radicals, indeed, anyone who cares about the rights of people to join together to protest against injustice, should support such a dangerous measure.
I added this on 2015-01-18 (just after midnight Saturday night):
LakeSuperior made a very important point in the comments below:
"Whatever Constitution Rights that Daily Kos as an operation presently is deemed to have under the First Amendment would be extinguished by enacting the proposed constitutional amendment [assuming DK is organized for business purposes as a corporation].
It looks to me like the amendment might also interfere with the constitutional rights traditionally deemed attributable to newspapers and other media as well.
I hadn't thought of the impact on Newspapers, etc., but as written, I think it could be interpreted to take away the 1st amendment rights of all media outlets as well -- except for the individual blogger. After all, it says, that corporations, including in this case newspapers, have "no rights under this Constitution."
This would make the MoveToAmend proposal even more terrifying than I originally thought.