[Congressional Record Volume 160, Number 128 (Tuesday, September 9, 2014)]
[Senate]
[Pages S5385-S5387]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                            POLITICAL SPEECH

  Mr. LEE. Mr. President, political speech is not on the fringes of the 
First Amendment, it is the core freedom of democracy. The entire point 
of the First Amendment is to say the government has no business telling 
the citizens what constitutes reasonable political speech.
  Congress is not allowed to ban books. Congress is not allowed to ban 
magazines or pamphlets. Congress is not allowed to silence dissent. The 
idea behind this amendment is that government should have the power to 
silence criticism of the government. This amendment, referring to 
Senate Joint Resolution 19, is an attempt to control the words 
Americans speak and the ideas Americans hear. Every great movement in 
our democracy has been based on ideas that were at one time or another 
at the outset deemed unreasonable by the government. It is dangerous 
and it is un-American in the extreme. Under this proposed amendment, 
the Federal Government would have the power to decide which groups, 
which causes, which arguments, and ultimately which citizens would be 
allowed to enter the public square.
  The amendment would even empower Congress to distinguish between 
natural individuals and artificial entities; that is, rich and powerful 
people will still be free to influence our government but everyone else 
can be barred

[[Page S5386]]

from coming together and pooling their resources for that very purpose.
  What is an artificial entity with restricted speech rights? Churches, 
neighborhood associations, civic groups, single-issue organizations 
such as the national right to life, or NARAL, trade associations, 
businesses or labor unions, schools. The target of this amendment is 
America. Civil society. When politicians talk about outside groups, 
they mean outside Washington. They mean ordinary citizens coming 
together, rallying behind a common cause. They mean the abolition 
movement, the women's suffrage movement, and the labor movement, as 
well as the civil rights movement, antiwar movements, the pro-life 
movement, and the consumer rights movement. They mean citizens. That is 
who the authors of this amendment believe are outside intruders whose 
speech somehow needs to be regulated, needs to be restricted by 
Congress--people with ideas that are ``unreasonable,'' people such as 
Thomas Paine or Thomas Jefferson and Frederick Douglass and Susan B. 
Anthony and Martin Luther King, Jr.
  The true danger of the idea is even put into the text in the section 
3 carveout for the press. So wealthy individuals, those who happen to 
own newspapers or happen to own a television station or a radio 
network, do, under this proposed amendment, continue to have free 
speech. But the people who read and watch the media do not. Or the 
people who do not own those companies, do they not have the same 
rights? Under this proposed amendment, they would not. This is 
Orwellian. Under this amendment, Congress could establish a Federal 
ministry of truth of sorts to monitor the political speech of citizens 
and make sure they are reasonable, to make sure the activities in which 
they engage, those that are attempted to influence elections, are, in 
fact, reasonable.
  Congress would, of course, be empowered to define what constitutes 
journalism, what falls within the parameters of this freedom of the 
press carveout so that irritating bloggers and reporters and producers 
could perhaps be silenced, assuming they were carved out of that 
definition. This provision will not guarantee equality. It will rather 
guarantee inequality.
  It is right there in the text of the amendment. Some citizens' rights 
to free speech would be more equal than others under this proposed 
amendment. It is sometimes appealing at a surface level to start from 
the proposition that something such as this might be desirable to some 
for the simple reason that we do not want any one person or any one 
group of persons having a disproportionate impact on the electoral 
process. We do not want anyone or anything to be able to buy an 
election. But that misses the point. This would not solve that problem. 
In fact, this would make that problem worse.
  Consider, for example, the fact that under this proposed amendment, 
as I read it, and as I think most would read it, an individual would be 
free to spend unlimited amounts of money, thousands, tens of thousands, 
hundreds of thousands, maybe even millions or tens of millions of 
dollars supporting the candidate of her choice if that individual 
happens to own a newspaper or if that individual perhaps happened to 
own a television company or a radio broadcast network. That would be no 
problem. That would be beyond the scope of this proposed amendment, 
because under section 3 of Senate Joint Resolution 19, it makes clear 
that: ``Nothing in this article shall be construed to grant Congress or 
the States the power to abridge the freedom of the press.''
  So in light of section 3, everything else in Senate Joint Resolution 
19 might either do a lot or it might do a little. It might do 
practically nothing or it might do practically everything.
  Let me explain what I mean. Let's examine the text of the first two 
sections of this provision.
  Section 1 says: ``To advance democratic self-government and political 
equality, and to protect the integrity of the government and the 
electoral process, Congress and the States may regulate and set 
reasonable limits on the raising and spending of money by candidates 
and others to influence elections.''
  If your intent is deemed to involve influencing the outcome of an 
election, then you are subject to these reasonable limits. Well, what 
people in Congress think is reasonable might be different than what the 
American people think is reasonable.

  Then in section 2 it says that: ``Congress and the States shall have 
power to implement and enforce this article by appropriate legislation, 
and may distinguish between natural persons and corporations or other 
artificial entities created by law, including by prohibiting such 
entities from spending money to influence elections.''
  Herein lies the problem: Getting back to our hypothetical a few 
minutes ago, if the idea behind this is to prevent any person or any 
group of persons from having too much influence over elections taking 
place in the United States of America, this does not do that. Depending 
on how broadly or how narrowly Congress chooses to define this contest 
of freedom of the press, which it carves out and holds harmless, this 
legislation might do everything or it might do nothing. Let me explain 
what I mean.
  Most of the money that is spent by political campaigns, whether by 
individual candidates or by organizations attempting to influence the 
outcome of elections, comes in the form of disseminating a message, 
comes in the form of either printed material, in the form of pamphlets 
or the electronic equivalent of pamphlets, or it comes in the form of 
some type of advertising. Maybe it is an advertisement in a newspaper, 
maybe it is an advertisement on television. But that is where most 
political money ends up getting spent.
  As understood by the founding generation and as understood and 
interpreted by the Supreme Court to this day, most of that material is 
protected in the sense that most of that material constitutes something 
that falls under the category of freedom of the press. Freedom of the 
press, of course, does not belong solely, does not belong exclusively, 
to those who have a press badge or those who are part of what has 
historically been considered our news media.
  If, on the other hand, those who have drafted this amendment--if, on 
the other hand, those who would decide what laws to pass under this 
amendment to give it force, if they were to conclude that they wanted 
to more narrowly define ``press'' to include only credentialed media, 
perhaps newspaper reporters, perhaps newspaper reporters and radio and 
television reporters, then they would be significantly changing the 
First Amendment as interpreted by the Supreme Court. They would be 
significantly changing the nature of freedom of the press as recognized 
by the Supreme Court over the last two centuries.
  If, in fact, they choose to do it that way, then we would find 
ourselves in an awful situation in which the owner of a newspaper would 
be able to spend potentially millions of dollars, perhaps tens of 
millions, promoting the candidate of her choice simply because she owns 
a newspaper. But what about someone who does not own a newspaper but 
nonetheless wants her views to be expressed, wants to have some way of 
contributing to the national debate? What if there is someone out there 
who is really concerned, concerned about a particular issue?
  Let's say there is a voter who is concerned about the PATRIOT Act and 
she wants to contribute to an organization, let's say the ACLU, which 
would, in turn, perhaps make statements to try to influence the public 
debate about the PATRIOT Act. This could run afoul of all of that. In 
fact, under the plain language of it, it likely would. In fact, the 
ACLU itself has expressed this concern in a letter dated June 3, 2014, 
to Chairman Pat Leahy of the Senate Judiciary Committee on which I sit.
  On page 4 of that letter, the ACLU presents the following 
hypothetical:

       For instance, would an ACLU ad urging Members of Congress 
     to support Patriot Act reform, which runs shortly before the 
     November 2004 election, when that issue is at play in the 
     election, be construed as an issue ad exhorting voters to 
     support reform, or a covert attempt to influence voters who 
     oppose Members who do not support reform?
       Similarly, would an ad by a group urging repeal of the 
     Affordable Care Act, which runs before the 2012 presidential 
     election, be issue advocacy or covert express advocacy?

  These are questions raised by the ACLU itself.
  The PRESIDING OFFICER. The Senator's time has expired.

[[Page S5387]]

  Mr. LEE. I ask unanimous consent that I be given 2 additional minutes 
to wrap up my remarks.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. LEE. What all of this boils down to is that the core values, the 
core protections underlying the First Amendment are not just important, 
they are not just nice to talk about, they are at the very foundation 
of our representative democracy. They are at the very foundation of our 
Republic and how it operates. If this amendment were to pass, if this 
were to become part of the Constitution of the United States, Congress 
would become more powerful at the expense of the American people.
  Ultimately this will inure to the benefit of the political 
establishment in Washington. It would inure to the benefit, perhaps, of 
two political parties but everybody else would suffer. It would be more 
difficult for more Americans to speak on issues that concerned them. 
Congress would have more power and the States would have more power to 
restrict the speech of the American people.
  It has been said in the past that this is about restricting money, 
not speech. It is a little bit like saying a city ordinance prohibiting 
people from using either an automobile or a subway car to get to a 
protest rally isn't restricting their access to a protest rally or the 
right to participate in that protest rally.

  When money is the means by which the American people can have the 
ability to express their concern on an issue voters are facing in an 
upcoming election, that should concern us all. This is an attempt to 
weaken the most fundamental components of our rights as U.S. citizens. 
I must, therefore, oppose Senate Joint Resolution 19 and urge my 
colleagues to do the same.
  Thank you, Mr. President.
  The PRESIDING OFFICER. The Senator from Wyoming.

                          ____________________