An Open Letter to my Fellow Citizens
by Civis Americanus et Novi Eboraci
"The saddest epitaph which can be carved in memory of a vanished liberty is that it was lost because its possessors failed to stretch forth a saving hand while yet there was time." - Justice George Sutherland
The bedrock upon which the Republic stands is Liberty which our constitution unambiguously calls a blessing. The right to speak one’s mind on matters of public concern and to publish those thoughts is not only an important individual right by which individuals can defend their other rights in a democratic society, but also an instrument by which the counsel of reason may come to guide the policy of the nation.
Thus it saddens me to see so many of my fellow citizens being led astray by men of zeal, most well-meaning but without understanding, but others with darker motives, who propose to gut the First Amendment in the name of political equality. The cause of this unfortunate state of affairs is a misunderstanding of the Supreme Court’s 2010 ruling in the case of Citizens United v. FEC. This misunderstanding is threefold, first as to what the court held, second as to the effect of the ruling, and third as to what can be done about the concerns of some that this will cause negative effects for the body politic.
The question that the Supreme Court had to answer in Citizens United was this, when individuals form or join an association do they give up their right to free speech? The court following the opinions of courts before it held that that they do not.
In asking whether this decision was the right one, it is helpful to look at what a contrary ruling would have meant. If associations have no right to publish their views, then it follows that: a union should have no right to publish an advertisement to support a candidate that will look carefully after the interests of workers, that the ACLU should have no right to publish adds defending unpopular speech, that the NRA should not have a right to rate candidates for political office, that the New York Times should not indorse candidates or for that matter have an editorial page, that priests and rabbis should have no right to comment on the morals of public officials or their policies from the pulpit, that universities should have no right to teach that which they believe to be true, good, and useful.
Would these outcomes be consistent with the First Amendment rule that “Congress shall make no law … abridging freedom of speech or of the press”? I submit that they would not.
Now some will no doubt say that the law that was struck down was narrower than this, which is partly true, but look at the facts at issue before the court in Citizens United. There the question was could a group of citizens and corporations form an association to make a documentary about a candidate for the presidency of the United States. Upon what basis could this be prohibited without treading the right of people to associate to express their views under foot?
More to the point those who propose to amend the constitution of the republic to overturn Citizens United v. FEC, have not limited their proposed amendment to only narrowly tailored instances. On the contrary, Senator Tom Udall’s proposed amendment gives congress “power to regulate the raising and spending of money and in-kind equivalents with respect to Federal elections, including through setting limits on-- the amount of funds that may be spent by, in support of, or in opposition to such candidates.”
The key phrases are “in-kind equivalents” and “spent by, in support of, or in opposition to such candidates.” An ”in kind equivalent” is anything which has value for the purpose of electing or defeating a candidate for public office. “Spent by, in support of, or in opposition to such candidates”, means what it says. So under this amendment congress has power to regulate anything that could help elect or defeat a candidate for public office.
There can be little doubt that a person standing on a street corner handing out homemade leaflets in support of a candidate would be of value to that campaign. A blogger who writes posts publicizing negative facts about a candidate is surely of value to the candidate’s opponent. For that matter, there is nothing more helpful to a campaign than an average citizen who is convinced that the candidate should be elected and tells his or her friends and acquaintances of their view. These are all in kind equivalents spent in support of or opposition to candidates. They are also the absolute core of the area protected by the First Amendment.
Whether he is well meaning but without understanding or worse, I will not venture to say, but the effect of Senator Udall’s proposed amendment is to put the power to regulate all political speech into the hands of Congress. This is an abomination.
The only reason citizens have been fooled into thinking this is anything but a disaster is because they have been mislead about the magnitude and effect of campaign spending. They believe that so much money is being spent that the donation of the average citizen can have no impact on the electoral process.
Here are the facts. In the 2012 election cycle about $7,127 million was spent on the Federal Elections. Since the population was 313.9 million in 2012 that is $22.70 for every man, woman and child in the United States.
This is hardly an out of control amount and well within the reach of most citizens. Nor is it true that gutting the first amendment is the only way to mitigate any ill effects of campaign spending on the body politic.
If we are really worried that campaign contributions are corrupting our legislators there are two reforms to the legislature that would help reduce this problem. First, if we significantly increased the number of seats in the House so that house districts were half as large this would significantly reduce the need for campaign spending because it would cost less than half as much to run for a district half the size. Second, we could choose some of the members of Congress by lottery. If a third of the members of the Senate were chosen from among members of the state legislatures and a third of representatives were chosen by lot from among the citizens then it would be nearly impossible for campaign donations to significantly corrupt the legislative process.
Another way we can reduce corruption in the political process is to reduce the fruits of crony capitalism. If the courts would fulfill their duty to enforce the constitution in the realm of economic liberty, there would be a lot less potential for corruption. For example, in the case of Kelo v. New London, if the court had enforced the public use clause of the Fifth Amendment, it would have put to an end the practice, ripe for corruption, of using the eminent domain power for “economic development” that was as Justice Thomas wrote, “suspiciously agreeable to the Pfizer Corporation.” Likewise if the court would enforce the privileges and immunities and due process of law clauses, then much of the monopoly licensing that stifles our economy and provides a strong motive for political corruption would be ruled unconstitutional.
In other words, if we are concerned about corruption of the legislature then we can take steps to fix that without gutting our rights of association and free speech. But it will be a sad day for our country and the liberty of the world when an amendment is passed which repeals our First Amendment Rights.
“The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials, and to establish them as legal principles to be applied by the courts. One's right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote;” - Justice Robert Jackson