Senator spending money to restrict rights of others to express themselves by spending their own money

Nevada’s freshman U.S. Sen. Catherine Cortez Masto has uncovered a new right in the penumbra of the Constitution. In an email sent out this morning, the senator is seeking support for a constitutional amendment that would reverse the 2010 Supreme Court decision known as Citizens United v. FEC, which said individuals, nonprofits, corporations, unions and other organizations have the right to spend money at any time to express their political opinions under the First Amendment.

Cortez Masto’s email seeks support for a constitutional amendment — called Democracy for All — that would allow Congress and the states to restrict how much money anyone may spend to support candidates or election issues.

Catherine Cortez Masto (Las Vegas Sun pix via USA Today)

Catherine Cortez Masto (Las Vegas Sun pix via USA Today)

In bold-faced type, the email declares: Citizens United defies the very principle on which our country was founded: that every person has an equal say in our democracy.”

An equal say? Sounds like everyone could be restricted to one 140-character Tweet a day.

Never mind that at the time of the Founding, the “say” that constituted the right to vote was reserved for only those who owned property and black males could not vote until after the Civil War and women not until the 20th century. But what’s a little revisionist history when you are begging for contributions so you can spend money to create a constitutional amendment to limit how much money others may spend?

It also sounds like the senator has an ax to grind:

We all remember the disgusting amount of money right-wing groups, like those in the Koch brothers’ network, spent to defeat me in our race for the Senate: over $70 MILLION! And with the Koch network pledging to spend as much as $400 million this cycle, it’s high time we get dark money out of our election process. We cannot continue to allow the deep pockets of special interests to drown out the voices of the average American.

It must not be very dark if she knows how much they spent and how much they plan to spend.

Apparently she is referring to the part of the amendment that would allow lawmakers to “regulate” free speech, which is newspeak for forcing the disclosure of all donors to any given cause.

Actually, Citizens United did not overturn laws requiring disclosing of donors, as witness a dissent by Justice Clarence Thomas:

Now more than ever, (the law) will chill protected speech because — as California voters can attest—“the advent of the Internet” enables “prompt disclosure of expenditures,” which “provide[s]” political opponents “with the information needed” to intimidate and retaliate against their foes.   Thus, “disclosure permits citizens … to react to the speech of [their political opponents] in a proper”—or undeniably improper —“way” long before a plaintiff could prevail on an as-applied challenge. …

I cannot endorse a view of the First Amendment that subjects citizens of this Nation to death threats, ruined careers, damaged or defaced property, or pre-emptive and threatening warning letters as the price for engaging in “core political speech, the ‘primary object of First Amendment protection.’ ” … Accordingly, I respectfully dissent from the Court’s judgment …

If we may be so bold as to remind those who attribute false precepts to the Founders, the Federalist and Anti-Federalist Papers were penned anonymously by men familiar with the anonymous works of Thomas Paine, John Locke and Montesquieu.

Cortez Masto’s screed concludes:

The level of influence from billionaires and millionaires in our electoral system is unprecedented. And it’s ridiculous. We need to end the unlimited and dark contributions of big corporations and special interests if we’re going to have a democratic process and a government that will truly work for all Americans – not just the richest few. How big your bank account is should not permit you to have a louder voice in our democracy.

Thank you for joining me to help restore transparency and fairness to our democratic system.

¡La lucha sigue! The fight continues!


Below this is a button one may click to contribute money, as well as a disclosure: “Paid for by Catherine Cortez Masto for Senate.” How would she like it if her speech were restricted?

The problem is that free speech is not free if the incumbent government satrapy can curtail its dissemination.

Justice Anthony Kennedy explained this in his majority opinion in Citizens United v. FEC:

As a “restriction on the amount of money a person or group can spend on political communication during a campaign,” that statute “necessarily reduces the quantity of expression by restricting the number of issues discussed, the depth of their exploration, and the size of the audience reached.” … Were the Court to uphold these restrictions, the Government could repress speech by silencing certain voices at any of the various points in the speech process. (Government could repress speech by “attacking all levels of the production and dissemination of ideas,” for “effective public communication requires the speaker to make use of the services of others”).

By the way, the amendment has an exception for the press, which happens to be owned and operated by big, powerful, and oft times rich corporations.

Freedom of the press belongs to those who own them.

The Democracy for All amendment:

SECTION 1.  To advance democratic self-government and political equality for all, and to protect the integrity of government and the electoral process, Congress and the States may regulate and set limits on the raising and spending of money by candidates and others to influence elections.

SECTION 2.  Congress and the States shall have power to implement 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.

SECTION 3.  Nothing in this article shall be construed to grant Congress or the States the power to abridge the freedom of the press.


14 comments on “Senator spending money to restrict rights of others to express themselves by spending their own money

  1. deleted says:

    Couple of corrections Thomas:

    Should be “black” males not “back”, and “dissent” rather than decent.

    In any event, a very poorly written proposed Amendment.

    Could easily be interpreted to grant only joint authority to act, requiring the assent of both Congress “and” “the states” before an regulation is enacted.

    The most important part of course, (and one that truly ought to be wholly unnecessary but for the judicial activism of a right wing clerk/justice) is the one stating that a corporation is not a person.

  2. Thanks, my “proofreader” caught those shortly after I posted.

  3. Right to peaceably assemble.

  4. deleted says:

    Obviously, even though I need a “proofreader” more than you do Thomas, no one pays enough attention to what I write to notice most times.

    But only “people” have a right to assemble. Doesn’t give corporations the same rights as people. And the founding fathers sure didn’t see corporations as people, otherwise they could have just added corporations to the First, and every other Amendment.

  5. Barbara says:

    It is not accurate to say that blacks did not vote prior to the Civil War. See for a history of Black voting rights.

    “State constitutions protecting voting rights for blacks included those of Delaware (1776), [5] Maryland (1776), [6] New Hampshire (1784), [7] and New York (1777). [8] (Constitution signer Rufus King declared that in New York, “a citizen of color was entitled to all the privileges of a citizen. . . . [and] entitled to vote.”) [9] Pennsylvania also extended such rights in her 1776 constitution, [10] as did Massachusetts in her 1780 constitution. [11] In fact, nearly a century later in 1874, US Rep. Robert Brown Elliott (a black Republican from SC) queried: “When did Massachusetts sully her proud record by placing on her statute-book any law which admitted to the ballot the white man and shut out the black man? She has never done it; she will not do it.” [12]

    As a result of these provisions, early American towns such as Baltimore had more blacks than whites voting in elections; [13] and when the proposed US Constitution was placed before citizens in 1787 and 1788, it was ratified by both black and white voters in a number of States. [14]

    This is not to imply that all blacks were allowed to vote; free blacks could vote (except in South Carolina) but slaves were not permitted to vote in any State. Yet in many States this was not an issue, for many worked to end slavery during and after the American Revolution. Although Great Britain had prohibited the abolition of slavery in the Colonies before the Revolution, [15] as independent States they were free to end slavery – as occurred in Pennsylvania, Massachusetts, Connecticut, Rhode Island, Vermont, New Hampshire, and New York. [16] Additionally, blacks in many early States not only had the right to vote but also the right to hold office. [17]

    Congressional Actions

    In the early years of the Republic, the federal Congress also moved toward ending slavery and thus toward achieving voting rights for all blacks, not just free blacks. For example, in 1789 Congress banned slavery in any federally held territory; in 1794, [18] the exportation of slaves from any State was banned; [19] and in 1808, the importation of slaves into any State was also banned. [20] In fact, more progress was made to end slavery and achieve civil rights for blacks in America at that time than was made in any other nation in the world. [21]

    In 1820, however, following the death of most of the Founding Fathers, a new generation of leaders in Congress halted and reversed this early progress through acts such as the Missouri Compromise, which permitted the admission of new slave-holding States. [22] This policy was loudly lamented and strenuously opposed by the few Founders remaining alive. Elias Boudinot – a president of Congress during the Revolution – warned that this new direction by Congress would bring “an end to the happiness of the United States.” [23] A frail John Adams feared that lifting the slavery prohibition would destroy America; [24] and an elderly Jefferson was appalled at the proposal, declaring, “In the gloomiest moment of the Revolutionary War, I never had any apprehensions equal to what I feel from this source.” [25] Congress also enacted the Fugitive Slave Law allowing southern slavers to go North and kidnap blacks on the spurious claim that they were runaway slaves [26] and then passed the Kansas-Nebraska Act, allowing slavery into what is now Colorado, Wyoming, Montana, Idaho, North Dakota, South Dakota, Kansas, and Nebraska. [27]

    This new anti-civil rights attitude in Congress was also reflected in many of the Southern and Mid-Atlantic States. For example, in 1835 North Carolina reversed its policies and limited voting to whites only, [28] as also occurred in Maryland in 1809. [29]”

    The framers of New Jersey’s first constitution in 1776 gave the vote to “all inhabitants of this colony, of full age, who are worth fifty pounds … and have resided within the county … for twelve months.” The other twelve new states restricted voting to men. Although some have argued that this gender-neutral language was a mistake, most historians agree that the clear intention was to allow some women to vote. Because married women had no property in their own names and were assumed to be represented by their husbands’ votes, only single women voted in New Jersey. But, in the 1790s and 1800s, large numbers of unmarried New Jersey women regularly participated in elections and spoke out on political issues. In 1807, the state’s legislature ignored the constitution and restricted suffrage to white male citizens who paid taxes

    Nevertheless, our first amendment right to free speech is just fine and doesn’t need any redefinition. Perhaps the good Senator needs to be reminded that the Founders specifically rejected democracy as our form of government. Should she really be interested in protecting political equality, her time would be better spent supporting voter I.D. laws.

  6. Rincon says:

    I think your argument that the Founding Fathers didn’t want an equal voice for all deserves reconsideration:

    1) The Founding Fathers had to find a way to include slave holding states in the Union, so they broke a few eggs. Attitudes about women have changed. Do you think we should get rid of womens’ right to vote (OK, maybe that’s not such a bad idea 🙂 2) They could not have anticipated mass media, scientific methods to manipulate human behavior or corporations and billionaires with a net worth greater than some small countries. 2) The Founding Fathers also realized that things would change throughout history and gave us a method to modify their work over time – Constitutional Amendments. They expected that we would be wise enough to make changes as necessary. They did not expect us to slavishly cling to their every word. Masto is going about it the right way by proposing a Constitutional Amendment. The Founding Fathers would have expected us to debate this standing on our own two feet, not cowering in front of their document, fearing to modify it as if it was the Koran.

  7. Steve says:

    Nevada is a small state, based on population.

    Keeping powers separate is more important here than overlap in more populated places or nationally.

    In a small population, there is no overlap, there is only more concentration of power.

  8. Rincon says:

    Limiting rich individuals is problematic, but limiting corporations is a no brainer. Corporations are made of individuals who all have a right to speak – and spend – as they see fit, so no person’s right to speak is taken away. By co-opting the money of shareholders who invested for apolitical reasons, without their permission AFTER they invested their money, corporations are essentially misrepresenting the beliefs of large numbers of their shareholders, which is ethically unconscionable.

    The other problem with Citizens United is that it ignores reality. A few hundred thousand dollars in a state senate race can swing voter numbers by a large margin, meaning that a single billionaire can change dozens of outcomes in any given election for very little money, as is occurring today according to Dark Money. The theory of free speech is fine, but any theory that cannot adjust to reality must be modified or discarded.

    One thing that would help a lot though, would be to enforce libel and slander laws more equally. Judges turn a blind eye to even the most ridiculous of misrepresentations. Lastly, the Constitution guarantees free speech, not anonymous free speech. Campaign contributions (at least over a certain amount) need to be in the public record.

  9. Barbara says:

    If you want to limit the corrupting influence of money in politics it is best done through tax reform. If politicians were not able to dole out tax breaks, subsidies, or regulations, the power of lobbyists and corporations, including unions, would diminish. This is a much better approach than limiting campaign contributions through legislation.

  10. Rincon says:

    Certainly a good start, Barbara. I’m all for getting rid of subsidies and tax breaks, which means all tax deductions, but regulations are a little tougher. Some are necessary. Subsidies are a little tricky too, in some cases. If we want charter schools for example, then isn’t a subsidy necessary to help them compete with public schools on a level playing field? In general though, I think it’s a great concept.

  11. It is not a subsidy if you just let parents keep the tax money that would have been spent to educate their children.

  12. […] Senator spending money to restrict rights of others to express themselves by spending their own mone… Nevada’s freshman U.S. Sen. Catherine Cortez Masto has uncovered a new right in the penumbra of the Constitution. In an email sent out this morning, the senator is seeking support for a constitutional amendment that would reverse the 2010 Supreme Court decision known as Citizens United v. FEC, which said individuals, nonprofits, corporations, unions and other organizations have the right to spend money at any time to express their political opinions under the First Amendment. […]

  13. Rincon says:

    Your words are well taken, Thomas. With much gnashing of teeth, I am forced to agree 🙂 Would welfare, Medicaid or the FDIC be termed subsidies?

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