Should the First Amendment be modified so that speech influencing elections can be regulated?

[Nye Bevan]

As an example, the following constitutional amendment would narrow the First Amendment to enable Congress to restrict independent expenditures intended to influence elections:

Insofar as it relates to freedom of speech, the First Amendment to this Constitution shall not apply to speech that refers to candidates in Federal or State elections, within the six month period prior to such elections.

In the Citizens United case the Supreme Court ruled that independent expenditures such as third parties making movies or publishing books about election candidates is protected speech under the First Amendment. Modifying the First Amendment so that this is no longer the case would enable Congress to restrict such expenditures by (for example) limiting the amount of such spending in the run-up to an election.

Such an amendment would also enable the US to institute a system such as elections being financed exclusively by public funds, or to ban all political TV advertising in the run-up to an election (as is the case in the UK, for example).

14 votes, 1 pass | Time left: Unlimited
	Yes, the First Amendment should be modified to enable speech influencing elections to be regulated.
	1 (7%)
	No, the First Amendment should not be modified to enable speech influencing elections to be regulated.
	13 (93%)
	1 DU member did not wish to select any of the options provided.
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[fishwax]

1. that's a very broad exception--congress could criminalize criticizing their favorite candidates

[Nye Bevan]

3. Their "favorite candidates" are themselves.

Most members of congress would support any system limiting the ability of challengers (or supporters of their challengers) to spend money on election campaigning.

[fishwax]

4. the exception is much broader than spending money though

[Nye Bevan]

8. In the US today, it is almost impossible to get your message out without spending money.

Sorry, because I know this is not a popular point of view on DU, but money is speech.

[fishwax]

13. The wording in the OP would eliminate protections against criticizing candidates in private

[Nye Bevan]

14. Perhaps the word "public" could be inserted immediately before the word "speech"

in the suggested amendment?

[fishwax]

18. but that would still remove protections against going to a park with a bullhorn

[Nye Bevan]

22. Yep. Circumscribing free speech is a very tricky thing.

At some point one has to assume that Congress would use its new powers under such an amendment in a reasonable manner. In general, there are a lot of horrible laws that Congress could choose to pass, but does not.

[Ranchemp.]

2. No.

Don't start dicking around with it, it could, and probably would, lead to more and more restrictions.
Ya know, that slippery slope thingy.

[el_bryanto]

5. The whole point of the 1st amendment is to protect political speech I thought? Am I missing

something? I'm all for getting the money out of politics, but think a simpler fix would be to modify it to clarify that money isn't speech.

Bryant

[Nye Bevan]

7. An amendment stating that "money isn't speech" would be devastating to the First Amendment.

In the wake of such an amendment, Congress could pass a law stating that nobody is allowed to spend any money criticizing members of Congress or the President, for example. Under such a law you could walk down the street with a bullhorn yelling that you hate your Congressman, or you would be allowed to stand in the town square criticizing the president, but you would not be allowed to pay for newspaper or TV ads or to publish a book containing such criticisms. The suggested amendment in the OP limits the First Amendment much, much less than your proposal.

[Igel]

16. Unless you had to buy the bullhorn.

And couldn't prove that you had already purchased it for some other purpose, presumably. Must be reasonable about certain exceptions to the restrictions.

[Savannahmann]

6. Uh Guys, this is what McCain Feingold did.

It made any documentaries and advertisements or political hit pieces disguised as entertainment subject to campaign finance laws. Citizen United, which has been objected to by our President, overturned those limits.

So you all are in favor of the Citizen United decision now? I only ask because I haven't read anyone saying good things about that decision here before. http://en.wikipedia.org/wiki/Citizens_United_v._Federal_Election_Commission

In fact, usually the term Citizen United is followed by vows to keep Republicans out of the White House in the hopes we can overturn it, which would put these limits, or versions of them, back in place.

[FreeJoe]

11. I have

I am one of those free speech extremists that actually supported the decision.

[Swede Atlanta]

9. Absolutely NOT........

This is the wrong approach.

We need to get MONEY out of our elections, not speech.

I have nothing against someone stepping out and vigorously advocating for a candidate or a cause or, conversely, challenging a competing candidate or cause.

My issue is with MONEY. Money is NOT speech. Speech is speech. If you want to go out to a local park and stand on a bucket and speak in favor of your candidate (or against another), go for it.

I draw the line when behind the scenes money such as the bound-for-hell Koch brothers, Adelson, others BUY speech by giving donations to campaigns in unlimited quantities. I would agree that money is speech to the extent that your money enables candidates and causes to promote and compete. But that cannot be endless. Otherwise the person with the most money will simply buy the election.

This is what the reich wing thought they could do with their millions in 2012. It did not work but that isn't to say it won't work in 2014, 2016, 2018 and beyond.

[Nye Bevan]

10. In the United States today, money is speech.

If Congress passed a law stating that nobody is allowed to spend any money on campaigning during election campaigns (but everyone is allowed to go to parks with bullhorns and make speeches about their favorite candidates) should such a law be constitutional? If you truly believe that "money is not speech" then you would answer "yes".

[Igel]

26. There's a simple response to this.

Just notice, next election, relative spending levels and the reactions by people who support and work against a particular candidate's election.

You'll find the following, for the most part:

Money is irrelevant. Bloomberg can outspend de Blasio and lose, and nobody notices that the assumption lots of money = electoral victory is false. Perhaps it's a trend, but it doesn't strike me as a particularly strong trend.

Money is often good. Obama outspends Romney, and the assumption lots of money = electoral victory is deemed irrelevant. Because it's our guy.

In some cases the greater spender wins. Then again, it would be really suspicious if the greater spender always lost. Most of the time the person who won probably would have won.

In cases where an election is really, really close the increased advertising may make a difference. That would be worth looking at. However, we still get cherry-picked anecdotes masquerading as actual data reported in the media.

In cases where early money can help define an opponent--or define the candidate--money can make a difference. However, this is a distraction: It's a great thing when it's our guy winning the definitional battle and an unfair advantage when the opponent does. So Obama defined Romney early on and Romney could never redefine himself. So there are times when money really does matter. Unknown candidates need to become known. Otherwise all you get are die-hard party loyalists voting for the (D) and not the person, and it's immaterial if the candidate actually supports all the (national) party's platform or not.

Of course, there are people who are opposed to either side having that kind of money. They're sort of purists, but in today's age banning money as speech would also necessitate limiting freedom of the press, since the person (or companies) with presses and other media outlets would be able to trumpet their candidates loudly while nobody else would be able to get significant access to the public. And, of course, incumbents would have a problem--would their campaign junkets disguised as policy speeches or constituent forums or not? We'd also have to limit freedom of assembly, since a lot of assemblies require rental space these days. Or permit fees.

Some of those against money = speech want money and speech to be at the government's insistence and discretion, which usually means minor candidates that nobody wants to fund anyway would get more money. Incumbents, of course, would be free to speak even more even as others are limited. Which works if your party's in power, but isn't so good if not.

[Nye Bevan]

38. Jerry Brown versus Meg Whitman is an interesting example (nt)

[WillowTree]

12. What's up with all the threads suggesting freedom of speech is too free?

[Nye Bevan]

17. I personally oppose messing with the First Amendment.

I am more interested in seeing how much support there is among DUers for such a concept.

I find it interesting that while many DUers oppose the Citizens United decision, it seems that most DUers also oppose the cleanest, simplest and most honest way of counteracting it (i.e. explicitly limiting First Amendment protections for electioneering speech). Other proposals I have seen such as "constitutional rights are only for natural persons" and "money is not speech" are much more restrictive of constitutional rights than the draft amendment in the OP. (And the "natural persons" amendment would still allow each of the Koch Brothers to spend however much they wanted during elections).

[dipsydoodle]

15. Pass

The US constitution is not the affair of outsiders.

[Nye Bevan]

23. I feel free to weigh in on other countrys' affairs when I feel like it.

Am I out of line when I comment on Chinese sweatshops, French taxes, the Russian justice system, Israeli settlements, or Scottish independence?

[dipsydoodle]

24. None of those refer to their constitutions

other than maybe the Russian justice system which cross refers.

[Nye Bevan]

25. A little OT, but I feel strongly that the UK should have a written constitution. Do you agree?

I think the current setup has worked well for a long time, but I can envisage a possibility of its vagueness being exploited in future by some kind of Nick Griffin/Nigel Farage-style nasty.

[dipsydoodle]

30. Yes - UK has no single constitutional document.

Much of the British constitution is embodied in written documents, within statutes, court judgments and treaties.

http://en.wikipedia.org/wiki/Constitution_of_the_United_Kingdom

We'd only get a nasty in the event of the public in general getting totally pissed off with what we have at present other than the event of one party declaring martial law for whatever reason.

btw BNP's Nick Griffin declared bankrupt http://www.bbc.co.uk/news/uk-england-25590155

[onenote]

19. Wow. Absolutely not.

What a bizarrely drafted amendment. On its face it would allow any level of government to ban any references to a candidate (including presumably speech by a candidate that refers to himself or herself). It could bar a newspaper from endorsing any candidates. Hell, it could bar citizens from displaying yard signs, bumper stickers, buttons.

I've seen a lot of attempts to deal with CU that were overbroad, but this takes the cake by a mile.

[Nye Bevan]

20. And the UK Government (for example) has the power to do all of that stuff already,

but chooses not to exercise it. The expectation would be that Congress would use its expanded power to regulate campaign financing in a reasonable manner.

[Ms. Toad]

28. Because the government is handling itself so responsibly

Gitmo
NSA
Extraordinary Rendition

Just off the top of my head.

No way.

[geek tragedy]

29. Congress does nothing in a reasonable manner. nt

[onenote]

55. If you don't want Congress (or a state government) to exercise the power, don't give it to them.

Why would you give such absolutely unbridled power to restrict political speech -- more power than is given over virtually any other type of speech -- not only to Congress, but to every state government (and by extension local government, since if the states have the power, they can delegate it down to the municipal or county level).

If you agree that this power shouldn't be unlimited, why wouldn't you define the limits in the amendment rather than open the door for heaven knows what.

[MurrayDelph]

21. I voted no, but on the other hand

I do think that all elected officials, when presenting themselves under the auspices of their office, should be required that all things said by them are to be viewed as under oath.

[geek tragedy]

27. The solution to an overexpansive reading of the First Amendment by the SCOTUS

is not to do away with it entirely during election season.

More sensible would be to establish that money is not speech, and that corporations may have their political speech regulated because they are corporations, not human beings.

[Nye Bevan]

31. "Money is not speech" would be a breathtaking circumscription of the First Amendment.

Publishing a book costs money. Making a movie costs money. Printing a newspaper costs money. Anything other than standing on the street corner making speeches costs money.

[geek tragedy]

32. And all are also economic activity that is regulated.

And there is a difference between engaging in speech activities like publishing a newspaper or taking out a radio ad, and shoveling piles of cash under the table to a shadowy front organziation.

[Nye Bevan]

34. So you think that it should be constitutional to ban books that mention election candidates

in the run-up to an election? On the grounds that publishing a book is an "economic activity that can be regulated", and that publishing a book costs money, and "money is not speech"?

[Bjorn Against]

66. The First Amendment covers books through freedom of the press

It does not say money is speech, if money were speech bribery would be legal. Do you think the first amendment gives you the right to bribe a federal judge?

[bemildred]

33. The problem is money and the capture of the media, not anything in the Bill of Rights. nt

[Nye Bevan]

35. The Citizens United decision is based upon the First Amendment (nt)

[bemildred]

36. And it is WRONG. And it will be FIXED. nt

[Nye Bevan]

37. How? With a constitutional amendment?

Or by hoping that future Supreme Court justices will somehow be able to torturously reinterpret the First Amendment so that it somehow allows Congress to ban books and movies that mention election candidates?

[bemildred]

39. I expect the two parties to cooperate to bring it about.

Have you noticed that the Republican establishment is becoming annoyed about all the black-money Tea Party buffoons?

Citizen's United is a threat to the two-party system, that's why, and to the jobs of the current party hacks. It should be very entertaining to watch.

Probably as an amendment, just to make sure, something short and definite like: "Money is not speech and corporations are not persons."

[Nye Bevan]

41. "Money is not speech" would be a breathtaking dismemberment of the First Amendment.

It would allow Congress to restrict or ban all forms of speech except for people speaking in the town square.

[bemildred]

42. Bullshit. Speech is speech. Try to put some in the bank.

The distinction is quite clear, some people (like our USSC) just find in inconvenient to notice it. The Constitution does not guarantee free money, it guarantees free speech (and assembly, and religion), nothing about money.

[Nye Bevan]

44. Should Congress be allowed to ban expenditure on speech to whatever extent they like?

If Congress passed a law banning any expenditure on any kind of speech relating to election candidates (so no books about the candidates, no ads, no movies, etc.), would you want that law to be constitutional?

[bemildred]

47. Congress should ban private money in politics altogether.

Public funding, everybody gets the same quantity of media time and money to make their case. Level playing field. We have much better people than the current crop of corrupt sellouts, we need to get them into Congress where they can do some good. That mean we have to open it up, remove the barriers, and money is politics is a barrier to everyone who doesn't have lots of it.

[Nye Bevan]

48. With the current First Amendment, Congress does not have the power to do that.

If you want Congress to be able to make it illegal for me to publish a book in August 2016, at my own expense, entitled "Why I Hate Chris Christie", you need a constitutional amendment. This is why, contrary to your post #33, it is indeed something in the Bill of Rights (the First Amendment) that prevents you from achieving your goal.

[bemildred]

49. Congress can and does get amendments passed, this one should be quite popular.

Sometimes it is just amazing how quickly they can do it.

[Nye Bevan]

51. You do realize that Congress cannot, by itself, pass constitutional amendments? (nt)

[bemildred]

53. Yes, I do. nt

[Nuclear Unicorn]

57. You realize you're throwing the union baby out with the Citizens United bath water.

[bemildred]

68. Not the union baby, the union-money baby, unions will have more power than ever.

If they have the political support of their members.

[Ohio Joe]

40. Are you advocating for corporations to be allowed to spend unlimited money on elections?

Is that what you want?

[Nye Bevan]

43. I agree with the current ban on corporate campaign contributions in Federal elections.

This ban was not affected by the Citizens United decision. But I do join with the ACLU in supporting the Citizens United decision that prevented Congress from banning independent expenditures by corporations and unions during election campaigns.

[Ohio Joe]

45. Open support for Citizens United on DU...

Sometimes I just have to shake my head and wonder.

[Nye Bevan]

46. Yes, I openly support the decision. And so does the ACLU.

Moreover, not only did they support it; they also filed an amicus brief in the case. But then again the ACLU supports a lot of constitutional rights that many people don't like (the right of the KKK to march, for example).

[Ohio Joe]

50. The ACLU supports what is in the constitution... That does not make it best for our country

Support of Citizens United is support for corporate control of our country... IMO, a stupid idea. It allows the opinion and even lies of a very small number of people to be spread far and wide. Corporations are not people and should not be allowed the same rights as people and political speech is absolutely one they should not have.

[Zorra]

78. ...

http://www.democraticunderground.com/?com=view_post&forum=1002&pid=4263495

[randr]

52. There should be consequences when a lie used to slam an opponent

When a publicly licensed network repeatedly lies with no retractions they should lose their license.
Bring back the 'fairness doctrine' and watch Faux fold.

[bemildred]

54. Yes, overt, demonstrable, political lies should have consequences.

When there is money involved, it's fraud, fraud is illegal, and there is boatloads of money in politics.

[onenote]

64. Faux isn't a publicly licenswed network

It is a cable network. It doesn't operate pursuant to a government license.

[randr]

69. All of their local stations are certainly licensed

through FCC broadcasting rules

[COLGATE4]

56. The First Amendment guarantee of free speech

is not absolute. Some types of speech - child pornography, for example are downright illegal. Other forms of speech - commercial speech (i.e. advertising) enjoys much less protection thanmost other types of speech. IMO I don't see why some types of political speech, particularly if restrictions are reasonable as to time and place (i.e. X months before an election) cannot legally also be constrained if the legislation is drafted carefully.

[Nuclear Unicorn]

58. "...if restrictions are reasonable as to time and place (i.e. X months before an election)..."

I want more speech, not less, leading up to an election.

[COLGATE4]

59. That's your prerogative. My point was limited

to saying that it can legally be done, not whether it is adviseable to do it.

[Nuclear Unicorn]

60. I'm at a loss to see how that could be legal/constitutional.

[COLGATE4]

62. The same way that advertising is not nearly

as constitutionally protected as other forms of speech. The 1A isn't nearly as rigid as most suppose.

[Nuclear Unicorn]

63. The 1A isn't designed to sell soap bubbles, it's meant to allow people to challenge the gov't

To protest, to campaign against those on power. Political campaigning is the heart of the 1A.

[COLGATE4]

74. So, is it your position that political speech

has no restrictions at all?

[Nuclear Unicorn]

75. There should be restrictions

but just on yours.

[COLGATE4]

76. Brilliant response. Shows your high

level of expertise.

[Nuclear Unicorn]

77. Laws aren't made by experts; they're made by politicians and by that I mean

corrupt, lying, manipulative, power-mongering thieves.

[onenote]

65. The law draws a line between "commercial" speech and political speech

with the greatest level of protection accorded to political speech. Proposals to restrict political speech turn that on its head and have no chance of beingheld constitutional under current jurisprudence.

[COLGATE4]

72. That's exactly what I said. But if

you can do away with the idiocy that "money = speech" you can certainly do it.

[Nye Bevan]

70. Your problem is that it only takes a court decision that takes exception to banning books.

Books that praise or criticize election candidates during a campaign.

Then how can you allow real books but not allow e-books on an e-reader?
How can you allow e-books on an e-reader but not e-books on a website?
How can you allow e-books on a website and not allow HTML documents?
How can you allow HTML documents but ban them from containing embedded pictures?
How can you allow embedded pictures in HTML documents but ban embedded video?
How can you allow HTML embedded video but not Youtube video?
How can you allow Youtube videos but ban Youtube ads?
How can you allow Youtube ads but not cable and satellite TV ads?
How can you allow cable and satellite TV ads but not network TV ads?

The only permanent way to achieve your goal is to abridge the First Amendment.

[COLGATE4]

71. No more of a problem than a court decision that

says that advertising has to be truthful.

[Gothmog]

61. Proposed 501(c)(4) tax amendments sort of accomplish part of this goal

I am against any direct attempt to regulate political speech or to define money as not being speech. However, there are some pending reforms that could help some of the issues and these reforms are acceptable to me. The Department of the Treasury is looking at new rules for 501(C)(4) entities that would restrict expenditures close to a primary or an election by defining such expenditures as being impermissible political activity http://www.irs.gov/uac/Newsroom/Treasury,-IRS-Will-Issue-Proposed-Guidance-for-Tax-Exempt-Social-Welfare-Organizations

Under the proposed guidelines, candidate-related political activity includes:

1. Communications
•Communications that expressly advocate for a clearly identified political candidate or candidates of a political party.
•Communications that are made within 60 days of a general election (or within 30 days of a primary election) and clearly identify a candidate or political party.
•Communications expenditures that must be reported to the Federal Election Commission.

If a 501(c)(4) engages in political activity in violation of these rules, then it would lose its tax exempt status and would be subject to FEC rules on the reporting of donors.

These rules are acceptable to me in that no one has a constitutional right to be a tax exempt organization. I am strongly against any other forms of regulation on speech.

[NaturalHigh]

67. Really?

No.

[KittyWampus]

73. Some speech may be construed as harassment and/or threats. So I can argue this either way.

[tblue37]

79. Yes, but only in the sense of limiting the amount and nature of financial and in kind contributions.

Since the First Amendment was twisted to give corporations the "free speech" rights of voters, the amendment should be, ah, *amended* to remove all possibility of such egregious misreading.

I don't mean that an individual's free speech rights should be modified, but that the amendment should not be permitted to be misconstrued to mean that individuals and corporations with unlimited wealth should be allowed to purchase the government so that its officials do their bidding rather than that of the country's citizens in general. The role of money in elections *should* be limited, and if that means the amendment needs to be rephrased in some way to say that, then I would be all for it.

[idendoit]

80. It's already regulated where I vote.

No politics at the polling place, no 'challenges' at the polling place, exit surveys done a certain distance from where I vote. And truth be known, I'm grateful it is.