Next, Freedom of Speech

Taking a scythe to the Bill of Rights
By George F. Will

Controversies can be wonderfully clarified when people follow the logic of illogical premises to perverse conclusions. For example, two academics recently wrote in the British Journal of Medical Ethics that “after-birth abortions” — killing newborn babies — are matters of moral indifference because newborns, like fetuses, “do not have the same moral status as actual persons” and “the fact that both are potential persons is morally irrelevant.” So killing them “should be permissible in all the cases where abortion is, including cases where the newborn is not disabled.” This helpfully validates the right-to-life contention that the pro-abortion argument, which already defends third-trimester abortions, contains no standard for why the killing should be stopped by arbitrarily assigning moral significance to the moment of birth.

Now comes Rep. Jim McGovern (D-Mass.) with a comparable contribution to another debate, the one concerning government regulation of political speech. Joined by House Minority Leader Nancy Pelosi (D-Calif.), 26 other Democrats and one Republican, he proposes a constitutional amendment to radically contract First Amendment protections. His purpose is to vastly expand government’s power — i.e., the power of incumbent legislators — to write laws regulating, rationing or even proscribing speech in elections that determine the composition of the legislature and the rest of the government. McGovern’s proposal vindicates those who say that most campaign-finance “reforms” are incompatible with the First Amendment.

His “People’s Rights Amendment” declares that the Constitution protects only the rights of “natural persons,” not such persons organized in corporations, and that Congress can impose on corporations whatever restrictions Congress deems “reasonable.” His amendment says that it shall not be construed “to limit the people’s rights of freedom of speech, freedom of the press, free exercise of religion, freedom of association and all such other rights of the people, which rights are inalienable.” But the amendment is explicitly designed to deny such rights to natural persons who, exercising their First Amendment right to freedom of association, come together in corporate entities to speak in concert.

McGovern stresses that his amendment decrees that “all corporate entities — for-profit and nonprofit alike” — have no constitutional rights. So Congress — and state legislatures and local governments — could regulate to the point of proscription political speech, or any other speech, by the Sierra Club, the National Rifle Association, NARAL Pro-Choice America or any of the other tens of thousands of nonprofit corporate advocacy groups, including political parties and campaign committees.

Newspapers, magazines, broadcasting entities, online journalism operations — and most religious institutions — are corporate entities. McGovern’s amendment would strip them of all constitutional rights. By doing so, the amendment would empower the government to do much more than proscribe speech. Ilya Somin of George Mason University Law School, writing for the Volokh Conspiracy blog, notes that government, unleashed by McGovern’s amendment, could regulate religious practices at most houses of worship, conduct whatever searches it wants, reasonable or not, of corporate entities, and seize corporate-owned property for whatever it deems public uses — without paying compensation. Yes, McGovern’s scythe would mow down the Fourth and Fifth Amendments, as well as the First.

The proposed amendment is intended to reverse the Supreme Court’s Citizens United decision, which affirmed the right of persons to associate in corporate entities for the purpose of unrestricted collective speech independent of candidates’ campaigns. The court’s decision was foreshadowed when, in oral argument, the government’s lawyer insisted that the government could ban a 500-page book that contained one sentence that said “vote for” a particular candidate. McGovern’s amendment would confer upon Congress the power to ban publishing corporations from producing books containing political advocacy, when Congress considers a ban reasonable — never mind the amendment’s rhetoric about the “inalienable” rights people enjoy until they band together to act in corporate entities.

A decade ago, then-Rep. Dick Gephardt said of George Soros’s spending in support of liberal causes: “It is not consistent with campaign reform, but it is consistent with what the Constitution says about freedom of speech.”

As the editors of National Review note, liberals control unions and most of academia and the media. Yet such is their evident lack of confidence in their powers of persuasion they are desperate to control the speech of others.

By proposing his amendment, McGovern helpfully illuminates the lengths to which some liberals want to go. So when next you hear histrionic warnings about tea party or other conservative “extremism,” try to think of anything on the right comparable to McGovern’s proposed vandalism of the Bill of Rights.