Recently, the U.S. Senate voted overwhelmingly to shut down a Republican filibuster on a resolution to amend the First Amendment. As contemplated by the proposed resolution, the new First Amendment would allow federal and state lawmakers to criminalize a book, an informercial, a documentary or a skit on “Saturday Night Live.”
In other words, campaign finance is the new flag burning. In both cases, the U.S. Supreme Court unleashed a political furor by holding that the First Amendment protects controversial forms of political expression — corporate political speech, igniting Old Glory — and the Senate has responded with a political gesture.
The First Amendment’s free speech and press clauses safeguard political expression in particular above all other forms of expression.
This was the key to the 1989 flag-burning decision. The case began 30 years ago, outside the 1984 Republican National Convention. A member of the Revolutionary Communist Youth Brigade publicly burned an American flag, for which he faced a year in prison and a $2,000 fine. The Supreme Court overturned the conviction on First Amendment grounds and invalidated the laws of the 48 states that had banned flag burning.
“It is poignant,” the Court observed, “that the flag protects those who hold it in contempt.” But the First Amendment protects nothing if not political expression, and flag burning is nothing if not political expression.
Advocating for or against a political candidate immediately before an election is expressive conduct that is no less overtly political. But, in a 79-18 vote last month, the Senate voted to advance a resolution, S.J. Res. 19, to prevent corporations and unions from spending general treasury funds to support or oppose political candidates. Debate on the measure remains open after a failed cloture vote last month.
The new First Amendment, proposed by Sen. Tom Udall (D-N.M.), would give Congress unlimited power to control campaign finance, including the power both to limit contributions to federal candidates and to limit spending for or against candidates. States would receive similar powers over state elections.
The proposal seeks to reverse a 2010 decision in which the Supreme Court invalidated limits on political speech about, but not generated by or coordinated with, a political candidate. In the case, a lobbying group known as Citizens United sought to advertise and air a documentary criticizing Hillary Clinton, in conflict with a then-recent federal law that prohibited “electioneering communications” in the weeks before a primary or a general election.
A lower court found that the federal law prevented Citizens United from advertising and airing the anti-Clinton documentary before the Democratic primaries in 2008. The Supreme Court reversed, holding that the First Amendment protects all speech, not categories of speech based on the speaker’s identity, and overturned part of the McCain-Feingold Act which President George W. Bush signed into law in 2002.
The decision outraged many on the left, with party leaders openly catcalling Supreme Court justices when President Obama upbraided the Court — after giving “all due deference to separation of powers” — during his 2010 State of the Union address.
Now, four years after the Citizens United decision, members of the Senate are shocked, shocked that the First Amendment could protect unpopular political views espoused by a corporation. One corporation in particular — The New York Times Company — shares their outrage, together with many other left-leaning corporations that produce print, broadcast and online media.
Granted, there is virtually no realistic chance that the proposed amendment would succeed. To become effective, S.J. Res. 19 would require approval by two-thirds of both the Senate and the House of Representatives and then ratification by 38 states. In practical terms, “proposing a constitutional amendment is the congressional equivalent of writing an editorial,” as The Wall Street Journal‘s James Taranto noted.
Hence the analogy to flag burning. In years past, conservatives sought to overturn the flag-burning case based on the visceral reaction many have at the abhorrent practice of burning the American flag. Less than a decade ago, Sen. Orrin Hatch (R-Utah) proposed to amend the First Amendment to allow Congress to “prohibit the physical desecration” of the U.S. flag. Hatch’s proposal, S.J. Res. 12, received an affirmative 66-34 vote in 2006, failing by one vote to muster two-thirds of the Senate.
With debate still open on Udall’s proposed amendment to the Bill of Rights, congresional watchers recall the controversy in the aftermath of the flag-burning decision and recognize a familiar pattern in the latest “congressional equivalent of writing an editorial.” Those who prefer James Madison’s First Amendment to Senator Udall’s may rest easy.
First published in The Hill in October 2014