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Senate Votes to Consider Speech-Restricting Constitutional Amendment

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Today the Senate decided to consider a constitutional amendment that aims to "advance democratic self-government and political equality" by restricting freedom of speech. The 79 senators voting for the cloture motion included 47 Democrats and two independents who think that's a swell idea, plus a bunch of Republicans who will end up voting against the measure but want to have a debate about whether the First Amendment is unacceptably permissive as it stands. Since a constitutional amendment requires approval by two-thirds of the Senate (and then two-thirds of the House, followed by two-thirds three-fourths of state legislatures), there is no way this measure, known as SJR 19, will pass, but the debate should be entertaining, and maybe even enlightening.

If it did pass, this amendment would mark the second time in U.S. history that Americans decided the Constitution should be changed to restrict individual freedom. So far the only such change was the 18th Amendment, which established national alcohol prohibition and was repealed 14 years later by the 21st. Rather than outlawing the manufacture and sale of alcoholic beverages, SJR 19 would let Congress and state legislatures "regulate and set reasonable limits on the raising and spending of money by candidates and others to influence elections."

Since spending of some sort is necessary to communicate with a mass audience, and since a wide swath of political speech could be understood as favoring a particular electoral outcome, the censorship permitted by this authority is vast. It goes far beyond the supporters' avowed goal of reversing Citizens United v. FEC, the 2010 decision in which the Supreme Court overturned restrictions on political speech by unions and corporations, and McCutcheon v. FEC, the 2014 decision that eliminated the overall limit on giving to federal candidates.

That's assuming you ignore or misunderstand the significance of Section 3, which says "nothing in this article shall be construed to grant Congress or the States the power to abridge the freedom of the press." That exception swallows the entire amendment once you recognize that "the press" in the context of the First Amendment refers to a technology of mass communication and not, as the amendment's backers seem to think, The New York Times and its competitors.

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  1. followed by two-thirds of state legislatures

    Did I learn this wrong in junior high school?

  2. “If it did pass, this amendment would mark the second time in U.S. history that Americans decided the Constitution should be changed to restrict people’s freedom.”

    Well, unless you think of the 13th as restricting people’s right to own other people…Or the 22nd for restricting people’s freedom to elect who they want as President.

    1. Or the 16th amendment for restricting people’s freedom to shield their income from taxation without regard to apportionment.

    2. You beat me. I’m glad someone is paying attention to what words mean.

      1. It figures you would think someone has the right to own you and that that right can somehow be abridged.

        1. Don’t you know that libertarianism means the right to oppress others? Ask Tony about that.

      2. But that doesn’t apply to BarryCare, does it? After all they meant the federal gov’t when they said “State” and defined “State” as one of the 50 States and the DC.

        Ends. Means. Whatever.

  3. That exception swallows the entire amendment once you recognize that “the press” in the context of the First Amendment refers to a technology of mass communication and not, as the amendment’s backers seem to think, The New York Times and its competitors.

    Well, you know that, and I know that, but does SCOTUS know that?

    1. That is one problem. The amendment could be taken as implicitly defining “the press” as the people who do it for a living, on the grounds that nobody would enact a null provision, so it must mean that for the amendment to make sense. And then the scope of that definition might be unlimited, so that it would also impute that meaning to the 1st amendment.

      1. It isn’t a null provision — it would still restrict the live, spoken word.

  4. I’m just trying to imagine how Democrats think the optics of this look, in light of the whole IRS thing. It’s almost like they want a civil war. But I do look forward to the ads from Rs saying “My opponent voted to abolish freedom of speech. He would be a great representative… in China.”

  5. Every single sentence of the Constitution and its amendments restricts someone’s freedom. Members of Congress in particular. This would restrict the freedom of wealthy interests to take control of elections. Not a trivial problem in contemporary America. And it is to beg the question, even if SCOTUS does decide that spending money, or shooting unarmed black people, or masturbating into public fountains, constitutes “free speech.” Money in elections tends to produce outcomes contrary to the spirit of free speech and democracy. Saying it’s equal to free speech may put you in accordance with the current SCOTUS, but it doesn’t have much to do with “freedom,” as they have yet to redefine that word in an obviously absurd and corrosive way.

    1. “This would restrict the freedom of wealthy interests to take control of elections. ”

      1. Bullshit. They’ll just buy a newspaper. Assuming SCOTUS doesn’t just adopt the more accurate sense of “press” libertarians use.

      2. Bullshit. Congressmen like money. They aren’t going to give the wealthy less reason to spread the love, or take a chance on not being Congressmen, so whatever they pass is just designed to promote incumbency without actually reducing the amount of money in play.

      3. Bullshit. If for some reason Congressmen do cut the wealthy out of decision making, they haven’t actually lost any of the power they were using for corruption. Without any pressure to share the loot, they’ll just make themselves that much richer. And since Congressmen definitely control elections, via election law, the wealthy (Congress) will still control elections.

      1. 4. Bullshit. This will never be equally enforced. From poll taxes to Lois Lerner, Democrats always pass these restrictions on people’s freedom claiming that they will be used equitably to clean things up, but instead they enforce them strictly on their enemies and give their friends a pass. Applying that principle here, it just means the wealthy will only be able to donate to Democrats. Which means, if you believe that money is incredibly important, that the wealthy will still control elections; it’s just that the Dem primary will be the only election that matters.

        If you want to eliminate the influence of the wealthy in Congress without attacking freedom of speech (granted, as enemies of the enlightenment, attacking freedom of speech is sort of a bonus for progs), get rid of elections. Revoke the 17th amendment, but in the interest of promoting the shallow sense of “democracy”, balance that out by making Representatives selected at random from their districts.

        1. wow – you think that getting rid of elections altogether is better? what a crock!!!

          Money is not speech, it is property, and can and should be regulated.

          I am all for the States regulating how much money is spent on buying elections.

          I hope this amendment passes.

    2. You know Tony, I sure wish Reason would exercise its rights to shut you up.

      Every post you make could be replaced with. We disagree with everything that Tony says and in honor of brainless Progressives like him we’d deleted his post.

      It’d serve you right you Progressive moron!

      1. Am I supposed to be surprised that you’re weak censoring totalitarians at heart? I’ve been saying that for years.

        1. Tony|9.8.14 @ 11:55PM|#
          “Am I supposed to be surprised that you’re weak censoring totalitarians at heart?”

          No, asshole, it’s not surprising at all that you miss the point.
          Stupidity is your prime attribute, approached only by your nastiness.

        2. But you are supporting weak censoring totalitarians (i.e. the Senate Democrats) on this thread, so how is that an insult to JWW?

    3. Tony|9.8.14 @ 8:32PM|#
      “Every single sentence of the Constitution and its amendments restricts someone’s freedom.”

      The ignoramus again proves confused by word definitions.
      No, asshole, they don’t.

      1. He’s not confused, he’s deliberately conflating individual rights with government authority because he thinks that false premise is a killer argument.

        1. Mickey Rat|9.8.14 @ 10:38PM|#
          “He’s not confused, he’s deliberately conflating individual rights with government authority because he thinks that false premise is a killer argument.”

          I propose fool and you claim knave? I can’t argue. He’s a slimy piece of shit one way or the other.

    4. That is one of the most insanely idiotic things I have ever heard. At no point in your rambling, incoherent response were you even close to anything that could be considered a rational thought. Everyone in this room is now dumber for having read it. I award you no points, and may God have mercy on your soul.

    5. Tony, the clear intent of this proposal is to grant the government the authority to control all political debate that matters. If that doesn’t scare the piss out of you, then you are even dumber than I thought.

      And I never thoght you had much of a chance in a battle of wits with, say, a smart dog.

      1. There are campaign finance restrictions in other countries. Countries whose governments operate better than ours. Not that there’s much competition on that matter.

        1. Tony|9.8.14 @ 11:56PM|#
          “There are campaign finance restrictions in other countries.”

          And there are slimy assholes like you who claim so.

          1. Oops:
            Tony|9.8.14 @ 11:56PM|#
            …”Countries whose governments operate better than ours.”

        2. And yet they always coming running to the US when they have a real problem.

      2. C. S. P. Schofield|9.8.14 @ 11:00PM|#
        “Tony, […] If that doesn’t scare the piss out of you, then you are even dumber than I thought.”

        I doubt few of us here have accepted the depths of his stupidity and nastiness; he’s a moral cripple who is unwilling to take responsibility for his activities absent a *government* authority to instruct him.
        Further, he’s stupid enough to presume everyone else is an equally pathetic excuse for a moral agent.
        I see people here treating this miserable fucking asshole as some sort of minor distraction. He’s not; he’s deserving of active rejection. He is a truly evil, miserable example of the worst sort of human who would gladly have government thugs kill every one of us who presume a libertarian view.
        If it sounds like I despise the slimy asshole, you’re getting close.

  6. Aw, I thought Bernie Sanders and Angus King would be libertarian since they are independent.

  7. I suppose trying to wall off politics from influence by building a wall around free speech is mechanistically easy, but since there’s so much speech, and so many ways it influences things other than by direct political influence, that’s an awfully big wall!

    My idea would be to do the reverse, which is mechanistically harder but leaves the vast realm of speech unaffected. That would be by changing the way elections for office are conducted, by insulating them from outside speech. Elections would be conducted like a jury trial. Anybody outside the room who stated an interest in being a candidate would be disqualified. Voter selection would be random, with no voir dire, and with little advance notice; anybody would be allowed to decline, however.

  8. This issue is so bizarre to me. It’s like those on the left are determinists who believe money buys votes. The logical conclusion from this line of reasoning? People are too stupid to think for themselves. What a dour world view. I don’t care how much Obama spends on advertising. You could lock me in jail all day and force me to watch his ads. I’d still never vote for him. Is the rest of humanity different than me? Can people like Tony be convinced to vote Republican if the Kochs spend enough? Or is this another ivory-tower holier-than-thou bunch of crock?

    1. It’s like those on the left are determinists who believe money buys votes.

      Maybe the useful idiots that they hope will make this happen, but the people behind this just know that money is necessary for any sort of meaningful freedom of speech; once they get the right to restrict money used for speech, they’ve basically set the stage for nullifying the first amendment, so they can finally shut up conservatives and libertarians and dissident leftists and get back to having a single acceptable viewpoint, like they have in their universities, or used to have with the big 3 TV networks (those were the days!).

    2. Ah, but the Left embraces the Progressive ideal; the absolute conviction that the vast majority of people are too stupid to runtheir own lives, combined with the certainty that the Progressives are placed on earth by Providence to tell those benighted peasants whaat to do.

      In short, they are another bunch of elitist oiks, just like the Aristocrats of the Old World, or the Planters of the Old South. Arrogant bigots who desperately need a swift kick.

  9. lol, US POlitics. BEst politics money can buy.

    http://www.Crypt-Tools.tk

  10. I’m going to go out on a limb here and complain that the 5th amendment subtly restricted people’s freedom. It approves of eminent domain as part of the supreme law of the land as long as there is “just” compensation. Enshrining the concept like that makes it much more difficult to ever completely abolish it, thus extending the time that this restriction of freedom would continue.

    1. Juice|9.8.14 @ 10:11PM|#
      “I’m going to go out on a limb here and complain that the 5th amendment subtly restricted people’s freedom. It approves of eminent domain as part of the supreme law of the land as long as there is “just” compensation”

      + one pipeline

  11. What strikes me, is how we keep lurching further and further to the far left that these senators purport to desire. If it’s going your way, why rock the boat? Just how homogeneous must it be?

    The right is now far to the left of the old left. The left is, well, all excited by Piketty and Warren, for fux sake!

  12. “…SJR 19 would let Congress and state legislatures “regulate and set reasonable limits on the raising and spending of money by candidates and others to influence elections.”

    And last time they did this by statute the government thought that it had the authority to ban media critical of a powerful establishment politician as a donation in kind.

    In other words, “speech is money” under these jokers but “money is speech” is a concept too horrible for republican to survive.

    1. The Democrats cannot be allowed to live this down, ever.

      1. But they will be, damnit. They have been allowed to shove so mch down the memory hole; the makeup of the Confederacy and the KKK for starters.

  13. And while we’re always treated to the yawn-inducing claptrap from progressives about how money isn’t speech, they always get all mumbly, put their hands in their pockets and start shoelace-gazing when you mention that these laws always will (and currently do) define that speech = money.

    Because if I let you talk on my radio station for free, well that’s an in-kind contribution so yes, these laws do DIRECTLY limit free speech.

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    1. My kingdom for a Flag as Spam button!

  20. this amendment would mark the second time in U.S. history that Americans decided the Constitution should be changed to restrict individual freedom. So far the only such change was the 18th Amendment, which established national alcohol prohibition

    NONSENSE!

    Amendment XVI is a far, far greater restriction on individual freedom.

    Amendment XIII also restricts individual freedom, but not many would want to become a slave, or to own a slave. However, such a situation is imaginable, and it is prohibited by law.

  21. In other words, political incumbents want to pass laws to restrict the speech of their political challengers.

  22. this amendment would not affect the press in any way. what it would do is limit who can buy, influence and hold in ransom, our elections.

    1 person, 1 vote. not 1 person, and $300,000,000 worth of votes.

    limiting how much money is spent on elections is a GOOD thing.

    unless you are the uber billionaire. then perhaps it’s bad. but that is why it is being passed.

  23. money is not free speech. if it were, free speech would not be free.

    let us all remember that.

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