Maryland Democrats Against The First Amendment

Democratic members of Maryland’s congressional delegation are seeking to radically alter the first amendment to give Congress the power to censor political speech and criminalize issue advocacy.

According to Politico, Rep. Donna Edwards (D-MD) is scheduled to appear alongside House Minority Leader Nancy Pelosi (D-CA) to introduce a constitutional amendment to overturn Supreme Court decisions in the Citizens United v. FEC and McCutcheon v. FEC cases.  Another Maryland congressman, Rep. Jon Sarbanes, penned a Washington Post oped with Pelosi bemoaning the “grievous error” Citizens United and introduced a bill that would also restrict speech rights and freedom of association.
The Democratically sponsored amendment would give Congress the power to regulate the raising and spending of campaign funds, including the amount spent by outside groups.  Tom Udall (D-NM) introduced a similar bill in the Senate, S.J. 19 co-sponsored by Maryland senators Barbara Mikulski and Ben Cardin. 
The bill recently passed the Senate Judiciary Committee.

 Section 1. To advance the fundamental principle of political  equality for all, and to protect the integrity of the legislative and  electoral processes, Congress shall have power to regulate the raising  and spending of money and in-kind equivalents with respect to Federal  elections, including through setting limits on– (1) the amount of contributions to candidates for nomination for election to, or for election to, Federal office;  and (2) the amount of funds that may be spent by, in support of, or in opposition to such candidates.    

 Section 2. To advance the fundamental principle of political equality for all, and to protect the integrity of the legislative and electoral processes, each State shall have power to regulate the  raising and spending of money and in-kind equivalents with respect to  State elections, including through setting limits on–(1) the amount of contributions to candidates for nomination for election to, or for election to, State office; and (2) the amount of funds that may be spent by, in support      of, or in opposition to such candidates.  

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

Trending: Red Maryland Radio #445: January 30, 2020

 Section 4. Congress and the States shall have power to implement and enforce this article by appropriate legislation.

The Citizens United decision, struck down portions of the Bipartisan Campaign Reform Act of 2002 or McCain-Feingold because the Supreme Court found that the law’s restriction on the non-profit corporation Citizens United from running a pay-per view documentary about Hillary Clinton inside the time frame McCain-Feingold outlawed such communications mentioning a candidate before a primary or general election, to be unconstitutional.  The Supreme Court upheld the first amendment’s prohibition on the government from restricting the political speech of corporations (which are groups of people banning together for a common purpose) and unions.
The McCutcheon decision overturned the ban on aggregate contribution limits by a single donor to a candidate, political party or political action committee.
In a letter to the chair of the Senate Judiciary Committee, Patrick Leahy (D VT), The American Civil Liberties Union said that Udall’s amendment would “fundamentally break the constitution, and endanger civil rights and civil liberties for generations,” and that the amendment would be the “first time the amendatory process has been used to directly limit specifically enumerated rights and freedoms.”
The ACLU also noted the extreme dangers posed in Section 3 of Udall’s amendment, that “exempts” the first amendment’s “freedom of the press.”

First, it could actually make matters worse. Those with enough money can afford to buy newspapers or journalistic websites, which are indisputably press outlets, and would be completely outside the scope of the laws permitted by this amendment.  William Randolph Hearst’s newspaper empire, for instance, was at first a vigorously partisan supporter of Franklin Roosevelt (and then critic), and such partisan electioneering by the mass media would unquestionably be permitted under this amendment. 

 Second, it invites government inquiry into what constitutes “the press,” which is increasingly problematic in the age of citizen journalism and the Internet.  Here, the government would have to determine if the Daily Kos or Red State qualify as “the press.” If yes, they can blog freely. If no, they could be censored or even go to jail.  The potential for abuse is obvious. 

 Accordingly, the reference to freedom of the press could perversely limit that freedom. Legally, “the press” has been defined broadly. It encompasses not only the “large metropolitan publisher” but also the “lonely pamphleteer.”  “Freedom of the press is a fundamental personal right,” the Supreme Court has written, “which is not confined to newspapers and periodicals. It necessarily embraces pamphlets and leaflets. The press in its historic connotation comprehends every sort of publication which affords a vehicle of information and opinion.”
  The reference to freedom of the press will force the government and courts to draw difficult lines between non-traditional media and the “large metropolitan publisher.” More often than not, the latter, simply because of the breadth of issues covered in their media, is going to appear less “political” than the pamphleteer handing out circulars urging greater gun control, reproductive freedom or a path to citizenship for undocumented immigrants. The courts interpreting the law permitted by this amendment are therefore more likely to move away from the notion of “lonely pamphleteer” as press. 

 Finally, fourth, the reference to the press clause expressly incorporates the speech, assembly and petition clauses into the Udall amendment by omission. In other words, the amendment makes clear—through lack of reference to the speech clause—that this amendment is meant to directly constrain the existing speech, assembly and petition rights, and potentially all other constitutional rights that could conceivably apply, with respect to both the state and federal governments. That is both unprecedented and exceedingly worrisome. 

 Additionally, we note that Section 3 appears to only apply to Congress, suggesting that states may be free to “abridge” the freedom of the press.

The ACLU’s warning that states may be free to abridge freedom of the press is especially chilling here in one-party Democratic dominated Maryland. 
Imagine, the power to abridge the freedom of the press in the hands of a ruthless political machine that already believes it has the power to determine who is, and who is not a journalist, and abuses the state’s public information laws to punish its enemies and protect itself.
In world where Edwards, Sarbanes, Mikulski and Cardin had their way, the state of Maryland could arbitrarily censor outlets like Red Maryland, Watchdog Wire, or even liberal blogs like Maryland Juice, Seventh State, and Todd Eberly’s Freestater Blog. 
Of course, all the Maryland Democratic Party’s rending of cloth and gnashing of teeth at the time of the Citizens United decision wasn’t really about “principle of political equality of all,” rather it was a real temper tantrum that Citizen’s United legitimized alternative voices besides their own, and the threat is poses to their monopoly bought by the very same corporate special interests Maryland Democrats purport to oppose.

Send this to a friend