On the subject of free speech the founders could not have been clearer. When they wrote that “Congress shall make no law” inhibiting its exercise or that of freedom of the press they were quite specific.
Over the last forty years that admonition – it is indeed something stronger than mere advice that one might find in historical documents, memoirs, and contemporary speeches – has been shunted aside, the result of the false assumption that money is a corrupting influence on the political life of the nation.
Starting in the post-Watergate era Congress passed and presidents pushed for a series of laws that created the Federal Election Commission – an independent agency whose members are appointed by the Senate on a partisan basis and confirmed by the Senate – and restricted campaign fundraising and other activities.
Many of those laws, and the attendant regulations allowing for their enforcement, have been recently overturned. Decisions of the United States Supreme Court in cases like Citizens United v. FEC and McCutcheon v. FEC established that the ability to support financially causes and candidates, is as much a constitutionally protected statement as a campaign ad or a newspaper editorial.
These decisions have set off a firestorm of protest by advocates of the kind of closed, pro-incumbent political system that has been in place since Richard Nixon was forced from office in 1974. The corrections they have proposed and discussed, however, are more than an attempt to put the proverbial genie back in the bottle – and those that may come out of the FEC constitute nothing less than a kind of overreach that is in direct conflict with the words of the Constitution and the intent behind them.
One of the most controversial – and most hotly demanded by those who seek to restore, reinforce, and expand the regulations in essence abolished in the Citizens United case is to eliminate the ability of corporations to engage in political activities including speech. Layered on top of an effort to establish and enforce regulations concerning the expression of political speech on the internet – down to the most mundane activities like share a campaign spot with friends and others on social media sites – such a move is a barely indirect assault on freedom of the press.
What the proponents of the idea of regulating or banning corporate speech owing to the dubious and hardly meaningful assertion that “corporations are not people” either fail to recognize or know full well but will not acknowledge publicly is that most news outlets are corporate entities from the smallest local newspaper to the media giants that broadcast over the airwaves and on cable from the office canyons of Manhattan. Any effort to regulate so-called corporate speech links directly to their product – whether it’s a news editorial endorsing a candidate, an unfavorable report on a politician’s ethics, or the cold opening sketch on NBC’s Saturday Night Live – which usually is about a political matter people are talking about. And at the moment broad reading of what some members of the FEC have entertained as ideas would give the federal government the option of fining, suing or investigating a comedian who told political jokes on nightly television, the production company behind his or her show, and the network that aired it within a certain number of days of an election or because the content of what was said constituted, in the mind of some censorious individual, express electoral advocacy.
The founders did not intend for the government to have that power. In fact one of the reasons for the political separation from Great Britain, as mentioned in the Declaration of Independence, was the effort by the Crown to silence the protests of the colonists who did not like the way they were being taxed without representation in the British Parliament.
Political cyber speech is the modern equivalent of a flyer posted on the Liberty Tree or a speech at the Cooper Union. The advent of blogs, news sites, video uplinks and information exchanges is a technologically-driven evolution of the national conversation, a way for ordinary Americans to speak truth to and about power.
Under the current rules all political advertising and commentary that flows from person to person and from website to website are exempt from regulation by the FEC. There are many who fear the FEC may take advantage of the need to bring the code into compliance with what the Supreme Court said in its McCutcheon decision as an opportunity to write into the book of federal regulations unconstitutional restrictions on speech. Any effort to do that, to bring the content of political speech as well as the time, place, and manner of its expression under the control and oversight of the federal government through regulation is as pernicious as any effort by Congress to pass a law in direct conflict with what the Constitution says.
Peter Roff, a member of Constituting America’s advisory board, is a U.S. News and World Report contributing editor and a commentator appearing on the One America News Network. He lives in Washington. DC.
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