November 2, 2011

Sheldon Whitehouse Wants to Roll Back the First Amendment

Carroll Andrew Morse

Rhode Island junior Senator Sheldon Whitehouse thinks the First Amendment of the United States Constitution goes too far. He has used his Senate seat, from the state that traces its lineage to early freedom-of-speech advocate Roger Williams, to introduce a Constitutional Amendment that would carve out a First Amendment exception allowing the government to restrict campaign expenditures by individuals. The part of the amendment that would apply to the Federal government reads...

SECTION 1. Congress shall have power to regulate the raising and spending of money and in kind equivalents with respect to Federal elections, including through setting limits on --

(1) the amount of contributions to candidates for nomination for election to, or for election to, Federal office; and

(2) the amount of expenditures that may be made by, in support of, or in opposition to such candidates.

A nearly identical second section of the amendment to the First Amendment (to borrow a phrase oft-used during past debates over anti-flag burning amendments) would grant the same speech-limiting powers to the states. Under the Whitehouse regime, the government would be allowed to tell political candidates that they were over the limit on the number of communications they were allowed in an election cycle, i.e. that they had run too many ads, or sent out too many mailings in an attempt to communicate with voters.

According to Senator Whitehouse's website, his speech restriction amendment is a response to the US Supreme Court's "Citizens United" ruling, where the Court held that the First Amendment protected the right of corporations to buy advertising (or to produce books or movies or any other form of media) that supported or opposed the election of political candidates.

How we get from the belief that "corporations" have "too much" political speech, to giving the government sweeping new powers to restrict the peaceful political expression of individuals is far from clear -- though it is clear that Senator Whitehouse thinks that there's too much political speech out there right now, and that something needs to be done to limit it.

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Holy cow.

So much for "Congress shall make no law . . ."

Wouldn't this completely knock MSNBC off the air, since it's essentially an adjunct of the President's re-election campaign?

Posted by: brassband at November 2, 2011 9:16 PM

Welcome to Hussein Obama and the "new" Demokrat Amerika. Comrade Whitehouse is doing his masters bidding just as Jack Reed is Hillary's hand puppet. The Dem RI contingent can always be counted on working against the interest of the Country and it's own floundering state. Central Falls is bankrupt and idiot Whitehouse is concerned about limiting the freedom of US citizens while championing the rights of illegals. RI politicians lead the universe in arrogance.

Posted by: ANTHONY at November 2, 2011 10:13 PM

Free speech implications aside, now the incompetent entities that are effectively ruining this country want us to grant them control of who can fund the most incompetence. Great!

Posted by: Max D at November 3, 2011 7:19 AM

Whitehouse is also running his mouth trying to cover up the "Fast & Furious" disaster as a bad "incident."

Bottom line: He wants you to stop criticizing this administration because you are a racist.

Posted by: dave at November 3, 2011 7:32 AM

In the real world - not in the textbooks or fantasies of economics professors - capitalism has always been, and will always be, a wealth-concentrating system. If you concentrate wealth in a society, you concentrate power. I know of no historical example to the contrary.

For all the trappings of formal democracy in the contemporary US, everyone understands that for the most part, the wealthy dictate the basic outlines of the public policies that are put into practice by elected officials. This is cogently explained by political scientist Thomas Ferguson's "investment theory of political parties", which identifies powerful investors rather than unorganised voters as the dominant force in campaigns and elections.

Ferguson describes political parties in the US as "blocs of major investors who coalesce to advance candidates representing their interests" and that "political parties dominated by large investors try to assemble the votes they need by making very limited appeals to particular segments of the potential electorate".

There can be competition between these blocs, but "on all issues affecting the vital interests that major investors have in common, no party competition will take place". Whatever we might call such a system, it's not democracy in any meaningful sense of the term.

"There is... an artificial aristocracy founded on wealth and birth, without either virtue or talents... The artificial aristocracy is a mischievous ingredient in government, and provision should be made to prevent its ascendency."
--Thomas Jefferson to John Adams, 1813.

Posted by: Russ at November 3, 2011 2:04 PM

I have never understood the argument that suggests that money equals speech. Taken to it's logical conclusion, those with more money have more "speech." I have no problem with individuals financially supporting their preferred candidates. I find more problematic that "non-persons," i.e., organizations, corporations, etc., can donate huge sums of money to candidates. It's these large pots of cash that cause the undue influence and not the individual contributions.

Posted by: Bucket Chick at November 3, 2011 8:09 PM

Of course money equals speech. Any form of communication beyond standing on the street and shouting requires money. It costs money to print flyers, to host a website, to rent a billboard, to operate a radio station, to publish a newspaper, and so on. Suppose the government decided to limit how much money newspapers could spend on ink and newsprint, or cap the rates that broadcasters could charge for advertising time. Those would be limitations on speech and press just as surely as any direct prior restraint.

Nor is there any grounds for claiming the First Amendment doesn't protect corporations. The amendment's language in no way suggests that people lose their freedom of speech because they chose to combine in any entity authorized by law. And to deny First Amendment protections to corporations would grant the government dangerous powers to suppress legitimate reporting. After all, all major media outlets are corporations - the New York Times, the Washington Post, the television networks, etc. To strip corporations of their First Amendment freedoms is to subject every major news outlet to government censorship.

In the end, it's not the campaign contributions that corrupt our system of government. It's the voters. The fact is the 1% can't do anything without at least the tacit consent of the 99%. It's a simple matter of counting votes. The problem is that voters can be as corrupt as politicians when it comes to selling their votes. The solution to this problem is more speech, not less.

Posted by: David P at November 4, 2011 4:53 AM

But what's most important about the Whitehouse amendment is that is doesn't just apply to "corporations". This amendment applies a "don't let a good crisis go to waste" mentality to the dissatisfication in some quarters with the "Citizens United" ruling, to try to lay a basis for sweeping new restrictions on individual political activity.

Once the government has moved from enforcing contribution limits to enforcing expenditure limits (which are currently unconstitutional), it will find itself enmeshed in all kinds of speech-suppressing regulation. For example, if your printer cartridge runs dry as you are printing a few homemade fliers in the last week of a campaign, it would become illegal to go out and buy a new one, even with money out of your own pocket, if the expenditure limit for the campaign had been exceeded.

Posted by: Andrew at November 4, 2011 9:48 AM

Don't they risk cutting their own nose off as the saying goes? If Congress can control this, that means someone is drawing a line in the sand. I understand where Sheldon wants to draw the line but who knows where it will be drawn to the benefit of the majority, correct?

Posted by: Max D at November 4, 2011 10:47 AM

My attitude-only individual living humans can contribute.
No corporations,unions,PAC's,or bundlers at all.

Posted by: joe bernstein at November 4, 2011 3:54 PM

"Nor is there any grounds for claiming the First Amendment doesn't protect corporations. The amendment's language in no way suggests that people lose their freedom of speech because they chose to combine in any entity authorized by law."

This misses the point somewhat. Corporations are not simply groups of people. Corporations are considered "legal persons" in themselves. As such, they have certain rights and restrictions that regular human beings do not. I'm personally not a big fan of "corporate personhood" or its limited liability structure, nor am I a fan of all the special rights that unions get under the law.

I'm not sure what can be done about various entities "buying" government for their own purposes through campaign contributions. The only thing I can come up with is giving government less power worth buying - something I doubt those in the Occupy movement would support.

Posted by: Dan at November 4, 2011 4:05 PM

Without "corporate personhood" the standard of living we take for granted would be impossible. We are able to buy all sorts of products, from food to technology, because producers take advantage of economies of scale, which are only possible because large groups of people pool their money to invest in capital. Those investors only invest because they are protected by limited liability. Without it, creditors, whether by tort or contract, could pursue every individual investor to satisfy business debts. Think about all the corporations in which you are invested by virtue of your 401k or IRA and then imagine that you could lose everything you own because of mistakes, mismanagement or simple bad luck on the part of the managers of any one of those companies.

All of which is to say that corporations were invented to facilitate the accumulation of capital for the purposes of carrying on business that would be beyond the capabilities of any one individual, no matter how wealthy that individual might be. If corporations may be formed for something as mercenary as making money, it would be perverse to prohibit them from engaging in debate on public issues.

This is different from the issue of whether or not corporations may make direct contributions to politicians. I'm pretty sure that's still illegal and I think that's a constitutionally justifiable prohibition. But I don't see how you can say that it's illegal for Citizens United to produce and distribute a documentary film about Hillary Clinton but it's perfectly legal for the New York Times Corporation to publish an editorial about her.

Dan is absolutely right about one thing. Money follows power. If you want to reduce the amount of money spent on politics, you have to reduce the power of government. Otherwise, all efforts at limiting the role of money will be futile. Many of the "villains" of current campaign finance law, like PAC's, bundlers and 527's, are the results of previous efforts at reform.

Bundlers, by the way, would exist even under Joe Bernstein's proposed rule. Bundlers are "individual living human beings" who collect checks from other "individual living human beings" and pass them on to campaign treasuries.

Posted by: David P. at November 4, 2011 6:53 PM

David P-I don't want to eliminate unions OR corporations,just political contributions from them.
You're probably right about the bundlers.

Posted by: joe bernstein at November 5, 2011 3:13 AM

Joe -

My defense of corporate personhood was actually in response to Dan's post. And I tend to agree with you about barring political contributions from corporations and unions. I do make a distinction between direct contributions to a campaign, which should be controlled, and independent expenditures on speech, which are protected by the First Amendment.

Posted by: David P at November 5, 2011 4:02 AM


The problem has always been that it is, by definition, incumbents who write campaign finance restrictions. So while incumbents are able to benefit from year round press coverage for their various accomplishments (usually paid for with taxpayer money -- a double insult!) and from being able to send out non-political "informational" mailings to their consitutents touting their work, they are also more than happy to write rules that restrict how much can be spent for an opponent to get his or her name out.

Posted by: Andrew at November 5, 2011 10:01 AM

Joe, David and others,

Durng the oral arguments in Citizens United, the government took the position that campaign finance laws gave it the power to ban the publication of books that mentioned candidate's names in the weeks before an election, as most publishers of books are "corporations". Fortunately, the justices disagreed that book banning -- even only of books published by "corporations" -- was consistent with the First Amendment. That's the real rationale behind the CU ruling.

Sheldon Whitehouse, it seems, would like to give book-banning powers to the government. Just a little, you know, just enough for your own good!

Posted by: Andrew at November 5, 2011 10:03 AM

OK Andrew-I see your point and the argument made in the case.
The campaign finance law was poorly written-that was the problem.
Bringing in books and pamphlets was a land mine.
The law should have confined itself to direct contrbutions.
And boy,are you ever on the money about Sheldon's attitude!!He is the epitome of the "my sh*t don't stink" elitist who knows what's appropriate for us groundlings.

Posted by: joe bernstein at November 5, 2011 10:58 AM
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