[Congressional Record Volume 160, Number 127 (Monday, September 8, 2014)]
[Senate]
[Pages S5361-S5363]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                        CONSTITUTIONAL AMENDMENT

  Mr. ROBERTS. This evening the Senate will vote on whether it should 
proceed to the consideration of a constitutional amendment that would, 
of all things, alter the Bill of Rights. Specifically, it seeks to 
amend the First Amendment to permit this Congress to regulate the 
speech and political activity of American citizens.
  As written, the First Amendment does not permit regulation of the 
sort the majority wishes to impose, so they have decided to rewrite it. 
This is incredible and a sad demonstration of the lengths to which this 
majority is willing to go in its quest to retain power.
  It is particularly sad when you realize that in just over 2 weeks we 
will be celebrating the anniversary of the Senate action that made 
ratification of the First Amendment possible. It was on September 25, 
1789, that this body passed the first 10 amendments to the Constitution 
of the United States. That was 225 years ago. The ratification process 
was completed when Virginia became the 11th State to approve the 
amendments on December 15, 1791.
  Since then, for over two centuries, the First Amendment has 
guaranteed all Americans will have the right to express themselves and 
participate in the political process without fear of government 
reprisal. While other nations have struggled to build and sustain 
democracy, the liberties guaranteed by our Constitution have given us a 
stability that allowed the United States of America to grow, to 
prosper, and to become a beacon of freedom around the globe.
  Our Founders knew that the free expression of ideas was essential to 
the life and health of our democracy. Many other nations have yet to 
learn this lesson and still punish and imprison their citizens for 
daring to speak out and challenge those in power.
  That does not happen here because of the system our Founders gave us. 
It does not happen because of the First Amendment. These things should 
be obvious. We might even call them self-evident. One would think that 
even in these polarized times we would have a consensus or could have a 
consensus on the wisdom of the Founders on this point.
  You would think that Senators on both sides of the aisle would 
recognize and agree that the First Amendment, which has preserved our 
liberty, must itself be preserved.

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  I am very sorry to say that if you thought that, you would be wrong. 
I am very sorry to say that as we stand here today in September 2014 
those on the other side of the aisle now want to reverse the decision 
this body made that September 225 years ago. Forty-nine Members of the 
majority have chosen to cosponsor S.J. Res. 19, an amendment to the 
Bill of Rights.
  I am pleased to say that not a single one of my Republican colleagues 
has joined them, but I am saddened that so many of those across the 
aisle have taken the extraordinary step of supporting it.
  I think the reason is clear. They want to silence their opponents. 
The First Amendment does not allow them to do so, so they are going to 
try and change it.
  The First Amendment begins with ``Congress shall make no law''--for a 
reason. Our Founders knew a great deal about human nature. They knew 
that those in power would be inclined to retain it and unless 
constrained would use their power to punish those who would seek to 
challenge them or remove them from office.
  The First Amendment denies us that power. It explicitly prohibits 
this Congress from passing laws that restrict the speech of the 
American people.
  Now the majority wants to remove that prohibition. They want to grant 
themselves the power to control speech, to silence their opposition.
  We will hear from the other side that there is nothing to worry 
about, that all they wish to do is impose reasonable regulations.
  Of course, the point of the First Amendment is to prevent this 
Congress from making determinations about what speech is reasonable--
and, therefore, permitted--and what is unreasonable and, therefore, 
prohibited. We don't need to speculate about what the majority will 
deem reasonable and what it will deem unreasonable.
  As I described at a recent Rules Committee hearing on the DISCLOSE 
Act, prior consideration of that legislation has shown us what the 
majority regards as reasonable. The DISCLOSE Act is the majority's most 
recent version of their now biannual attempt to create a new regulatory 
structure to deter speech. It is precisely the kind of legislation we 
can expect to see more of if the majority grants itself the power to 
regulate speech through the amendment we are debating today.
  So with past as prologue, let us recall what happened when the 
DISCLOSE Act was considered by the House in 2010. Not surprisingly, the 
restrictions and obligations it imposed were applied to groups 
disfavored by the majority at that time. A number of corporations were 
simply prohibited from speaking. Government contractors and TARP 
recipients were prohibited from making independent expenditures.
  During floor consideration an amendment was added also to prohibit 
speech by companies that explore and produce oil and gas on the Outer 
Continental Shelf. The bill was on the floor soon after the Deepwater 
Horizon spill, so this was an easy target.
  Not surprisingly, the majority thought it was perfectly reasonable to 
prevent any of these companies from speaking but did not think it was 
necessary to extend those restrictions to the unions that might 
represent the workforce in these companies. Republican amendments to 
extend the restrictions to those unions were rejected. The majority did 
not find them reasonable, apparently.
  In some cases groups were excluded from the disclosure obligation 
solely because the votes were not there to include them. That is what 
happens once the Congress starts imposing speech restrictions--
restrictions get applied to whoever doesn't have enough votes in the 
Congress to prevent them. Imposing speech regulations based on the 
whims of whatever party happens to be in the majority in the Congress 
at a given time is not reasonable, but it is exactly what happens once 
we start down this path and the majority has not deviated from it.
  The Rules Committee hearing revealed the DISCLOSE Act continues to 
exempt groups sympathetic to the majority from the obligations it would 
impose on others.
  It may be a natural impulse to wish those who are criticizing us 
would stop--everybody understands that--but the First Amendment does 
not allow us to make it stop. We should not have the power to silence 
our critics and we should never have it.
  I know many Members on the other side of the aisle are upset about 
the ads that are attacking them and their agenda. I know they want 
those ads to stop. Well, we don't get to choose who gets to speak.
  The proponents of this amendment and the critics of the Citizens 
United decision are clearly exercised by the prospects of corporate 
speech. It is obvious they fear how such speech might influence public 
policy debate in this country and their own electoral prospects. They 
have decided these voices should not be heard and must be suppressed.
  They claim to be motivated only by a desire to promote the health of 
this democracy. They claim they just want all voices to be heard and 
want to make sure powerful corporations do not drown out the voices of 
others.
  This claim is belied by one simple fact that there are and always 
have been powerful and wealthy corporations that have exerted enormous 
influence over our politics in this country and in our culture even. 
But the majority has not had a problem with them. I am speaking, of 
course, of media corporations. They were never limited by the 
electioneering restrictions imposed on other corporations. The Citizens 
United decision simply leveled the playing field and ended that 
nonsensical distinction.
  That logical and constitutional result alarms the majority, though, 
because they fear that other corporations may not be as sympathetic to 
them as media corporations have been. They therefore regard it as 
perfectly reasonable to allow media corporations to say whatever they 
want, while at the same time regarding it as intolerable that other 
corporations be permitted to do the same.
  While the amendment they propose would allow them to prohibit speech 
by any corporation--including the media--we can expect their allies 
will continue to enjoy the right to free expression. Their opponents, 
however, will be targeted. Those whose views align with the majority 
should draw no comfort from this fact though. Majorities do change. The 
whole point of the First Amendment is to ensure that the people's right 
to speak is not dependent on the whims of whatever majority happens to 
be in power at a given time in the Senate.
  People have a right to express themselves and that right is not 
limited to whatever this body might deem to be reasonable.
  We have a free marketplace of ideas. We do not entrust this Congress 
with the power to decide what ideas will get expressed or how much they 
will be expressed. Again, we don't entrust this Congress with the power 
to decide what ideas will get expressed or how much they will be 
expressed.

  The majority proposes this amendment because they want that power, 
but they should never have it, and neither should any future majority. 
We have already seen from the rule change they imposed unilaterally 
only a few months ago that this majority is willing to jettison 
longstanding traditions and practices for short-term political gain. 
This mentality has already done serious and possibly irreparable damage 
to this body, but apparently destruction of the Senate rules will not 
suffice. Now the Constitution itself must yield. The interests of the 
majority are paramount and everything--even our most basic principles--
must be sacrificed on the altar of the majority.
  Well, thankfully, the rules for ratification cannot be discarded as 
easily as the rules of this body. To ensure against precisely what the 
majority wishes to do--to alter the Constitution for their own 
benefit--the Founders made it very hard to amend. Two-thirds of each 
House of Congress must agree to an amendment. Then three-quarters of 
the States must ratify it. That is just not going to happen.
  But the fact that they will not succeed does not mean that we should 
not take their threat seriously. To even begin down this path shows a 
remarkable contempt for our political traditions and founding 
documents. It reveals the desperation of the majority and at the same 
time it reveals the wisdom of our Founders. In seeking to amend the 
First Amendment to protect

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themselves, the majority reminds us again how lucky we are to live in a 
country with a Constitution that prevents such abuses.
  I am profoundly grateful for the wisdom of the Founders and proud to 
stand here today to defend the First Amendment that they gave us.
  I will oppose this amendment today, tomorrow, and forever, and I ask 
my colleagues to do the same.
  I suggest the absence of a quorum, and I ask unanimous consent that 
the time be charged equally to both parties.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mrs. SHAHEEN. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.

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