Jun 19, 2014 - 3:15pm

Senate Resolution Endangers Free Speech

Former Executive Vice President, Government Affairs

Never in our Nation’s history has Congress voted to eliminate a freedom guaranteed by the Constitution’s Bill of Rights.

But that’s currently what Congress is considering. On June 18, the Senate Judiciary Subcommittee on the Constitution passed S.J. Res. 19, a resolution that would amend the Constitution to reduce dramatically the First Amendment’s protection of free speech.

Floyd Abrams, one of the country’s leading First Amendment advocates and scholars, explained in his Senate Judiciary Committee testimony that this proposed constitutional amendment “would limit speech that is at the heart of the First Amendment” and do so “in a sweepingly broad manner.” That is because the proposal eliminates First Amendment protection for speech attempting to persuade the public to vote for or against a candidate for public office.

Nothing is more central to our democracy than the electoral process, and nothing is more central to the electoral process than unfettered, robust public debate. That is why the First Amendment 

“has its fullest and most urgent application’ to speech uttered during a campaign for political office.” (Eu v. San Francisco County Democratic Central Comm., 489 U.S. 214, 223 (1989))

The Supreme Court recognized nearly 40 years ago that regulating election-related expenditures is the same as directly regulating speech:

“A restriction on the amount of money a person or group can spend on political communication during a campaign necessarily reduces the quality of expression by restricting the number of issues discussed, the depth of their exploration, and the size of the audience reached. That is because virtually every means of communicating ideas in today’s mass society requires the expenditure of money.” (Buckley v. Valeo, 424 U.S. 1, 19 (1976))

These regulations therefore “represent substantial rather than merely theoretical restraints on the quantity and diversity of political speech.” (Id.)

Some of the leading defenders of free speech ever to sit on the Supreme Court—including Justices Brennan, Marshall, Blackmun, Powell, and Stewart—joined these conclusions.

Notwithstanding the focus of S.J. Res. 19’s proponents on the Citizens United decision, the proposed amendment would, in fact, overrule longstanding Supreme Court precedents reaching back many decades.

The real-world effect of the proposed amendment would be increased protection for incumbent officeholders. Limitations on political speech favor incumbents, who virtually always are better known than their challengers. As Mr. Abrams explained, “those who hold office in both federal and state legislatures, armed with all of the advantages of incumbency, may effectively prevent their opponents from being known to the public, by adopting legislation, which the proposed amendment would empower them to do, limiting the total amounts [that challengers] may raise and spend.”

The First Amendment has served our country very well for more than two hundred years, protecting the vigorous debate that has preserved our liberty and our democracy. This Congress should not be the first to vote to reduce this precious constitutional protection. 

Learn more at www.uschamber.com/freespeech-center.

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About the Author

About the Author

Former Executive Vice President, Government Affairs

R. Bruce Josten was executive vice president for Government Affairs at the U.S. Chamber of Commerce until his retirement in 2016.