House Minority Leader Nancy Pelosi on Thursday endorsed a movement announced by other congressional Democrats on Wednesday to ratify an amendment to the U.S. Constitution that would allow Congress to regulate political speech when it is engaged in by corporations as opposed to individuals.
The First Amendment says in part: "Congress shall make no law ... abridging the freedom of speech, or of the press..."
Television networks, newspapers, publishing houses, movie studios and think tanks, as well as political action committees, are usually organized as, or elements of, corporations.
Pelosi said the Democrats' effort to amend the Constitution is part of a three-pronged strategy that also includes promoting the DISCLOSE Act, which would increase disclosure requirements for organizations running political ads, and “reducing the roll of money in campaigns” (which some Democrats have said can be done through taxpayer funding of campaigns).
The constitutional amendment the Democrats seek would reverse the Supreme Court’s 2010 decision in Citizens United v. Federal Election Commission. In that decision the court said that the First Amendment protects a right of free speech for corporations as well as for individuals, and that corporations (including those that produce newspapers, films and books) have a right to speak about politicians and their records just as individuals do.
“We have a clear agenda in this regard: Disclose, reform the system reducing the roll of money in campaigns, and amend the Constitution to rid it of this ability for special interests to use secret, unlimited, huge amounts of money flowing to campaigns,” Pelosi said at her Thursday press briefing.
“I think one of the presenters [at a Democratic forum on amending the Constitution] yesterday said that the Supreme Court had unleashed a predator that was oozing slime into the political system, and that, indeed, is not an exaggeration,” said Pelosi. “Our Founders had an idea. It was called democracy. It said elections are determined by the people, the voice and the vote of the people, not by the bankrolls of the privileged few. This Supreme Court decision flies in the face of our Founders’ vision and we want to reverse it.”
At Wednesday’s forum, a number of House and Senate Democrats were joined by representatives from People for the American Way and Common Cause in declaring their dedication to enacting a constitutional amendment to restrict speech by corporations.
The participants noted that several members in both houses of Congress have offered various versions of an amendment to reverse Citizen United v. FEC and curb unwanted speech by corporations. Rep. Jim McGovern (D.-Mass.) is one of the members sponsoring an amendment.
“I've introduced a People's Rights Amendment, which is very simple and straightforward,” Rep. Jim McGovern (D.-Mass.) said at the forum. “It would make clear that all corporate entities, for-profit and non-profit alike, are not people with constitutional rights.
“It treats all corporations, including incorporated unions and nonprofits, in the same way, as artificial creatures of the state that we, the people, govern, not the other way around,” said McGovern.
Rep. Donna Edwards (D.-Md.) explained the basic principle this move to amend the Constitution is advancing.
“In Citizens United, what the court said is that Congress has no authority to regulate this kind of political speech,” said Edwards. “And so all of these constitutional amendments go to this question of giving Congress the authority that the Supreme Court, I think wrongly, decided isn't within Congress's constitutional--our constitutional purview.
“And so, you know, the traditional rights of free speech that we have known as citizens would not be disturbed by any of these constitutional amendments,” said Edwards. “But what it would do is it would say, all of the speech in which, whether it's corporations or campaign committees and others engage in, would be able to be fully regulated under the authority of the Congress and--and under our Constitution.”
“I mean, in my view, a corporation is not a person. It is not an individual,” said Edwards. “The rights that it has are those that are granted by the state, granted by the, by the Congress.”
In 2009, when the Supreme Court first heard oral arguments in the Citizens United case, Deputy Solicitor General Malcolm Stewart told the court that the administration believed the Constitution allowed the government to ban a corporation from using its general treasury funds to publish a book if the book advocated voting for something.
"Take my hypothetical," Chief Justice John Roberts asked Stewart about what kind of books the Obama administration believed it could constitutionally ban, "... This [book] is a discussion of the American political system, and at the end it says: Vote for X."
"Yes," said Deputy Solicitor General Stewart, "our position would be that the corporation would be required to use PAC funds rather than general treasury funds."
Roberts followed up: "And if they didn't, you could ban it?"
"If they didn't, we could prohibit the publication of the book using corporate treasury funds," Stewart answered.
When the court ruled against the Obama administration's position in this case, Chief Justice Roberts wrote a concurring opinion underscoring the fact that the administration had wanted the court to allow the government to prohibit political speech.
"The government urges us in this case to uphold a direct prohibition on political speech," wrote Roberts. "It asks us to embrace a theory of the First Amendment that would allow censorship not only of television and radio broadcasts, but of pamphlets, posters, the Internet, and virtually any other medium that corporations and unions might find useful in expressing their views on matters of public concerns."