September 09, 2014

Senator Roberts: The First Amendment Must Itself be Preserved

First Amendment Must not be Amended to Silence Opposition

WASHINGTON, DC – Taking to the floor of the U.S. Senate, Senator Pat Roberts today defended the First Amendment against Democrat Majority Leader Harry Reid’s attempts to silence opposition. Audio and video here. Senator Roberts is the ranking member of the Senate Committee on Rules and Administration which has jurisdiction over federal election law.

“Our founding fathers knew that those in power would be inclined to retain it and, unless constrained, would use their power to punish those who would seek to challenge them or remove them from office,” Roberts said. “The First Amendment denies us that power. It explicitly prohibits this Congress from passing laws that restrict the speech of the American people. With this amendment, the majority wants to try to remove that prohibition. They want to grant themselves the power to control speech – to silence their opposition.”

The Senator made the remarks during the floor debate on S. J. Res. 19, which would amend the Constitution of the United States to allow the Congress to regulate free speech and activity in federal elections.

Senator Roberts is an outspoken opponent of S.J. Res. 19 and another proposal to limit Americans’ free speech, the DISCLOSE Act. For more on Senator Roberts’ efforts to protect the First Amendment, go here.

The following is text of Senator Roberts’ floor speech against the Constitutional amendment, S.J. Res. 19:

Tonight, the Senate will vote on whether it should proceed to consideration of a constitutional amendment that would alter the Bill of Rights. 

Specifically, the amendment seeks to amend the First Amendment to permit this Congress to regulate the speech and political activity of American citizens. 

As written, the First Amendment does not permit regulation of the sort the majority wishes to impose, so they have decided to rewrite it. 

It is incredible, Mr. President, and a sad demonstration of the lengths to which this majority is willing to go in its quest to retain power.

It’s particularly sad when you realize that in just over two weeks, we will be celebrating the anniversary of the Senate action that made ratification of the First Amendment possible.

It was on September 25, 1789 that this body passed the first ten amendments to the Constitution of the United States. 

That was 225 years ago. 

The ratification process was completed when Virginia became the eleventh state to approve the amendments on December 15, 1791.

Since then, for over two centuries, the First Amendment has guaranteed all Americans will have the right to express themselves and participate in the political process, without fear of government reprisal.

While other nations have struggled to build and sustain democracy, the liberties guaranteed by our Constitution have given us a stability that allowed the United States of America to grow and prosper and become a beacon of freedom across the globe. 

Our Founders knew that the free expression of ideas was essential to the life and health of our democracy.  Many other nations have yet to learn this lesson, and still punish and imprison their citizens for daring to speak out and challenge those in power. 

That does not happen here because of the system our Founders gave us. 

It does not happen because of the First Amendment.

These things should be obvious, Mr. President.

You might even call them self-evident. 

And you would think that even in these polarized times, we could have a consensus on the wisdom of the Founders on this point. 

You would think that Senators on both sides of the aisle could recognize and agree that the First Amendment, which has preserved our liberty, must itself be preserved. 

Well I am very sorry to say, Mr. President, that if you thought that, you would be wrong.

I am very sorry to say that as we stand here today – in September 2014 – my friends on the other side of the aisle now want to reverse the decision this body made that September two hundred and twenty five years ago.   

Forty nine (49) of my colleagues have chosen to co-sponsor  S. J. Res. 19, an amendment to the Bill of Rights. 

I am pleased to say that not a single one of my Republican colleagues has joined them, but I am saddened that so many of my friends across the aisle have taken the extraordinary step of supporting it.

The reason is clear.

They want to silence their opponents.

The First Amendment does not allow them to do so - so they are going to try to change it.

Well, the First Amendment begins “Congress shall make no law…”   for a reason.

Our Founders knew a great deal about human nature. 

They knew that those in power would be inclined to retain it and, unless constrained, would use their power to punish those who would seek to challenge them or remove them from office. 

The First Amendment denies us that power. 

It explicitly prohibits this Congress from passing laws that restrict the speech of the American people.

The majority wants to remove that prohibition. 

They want to grant themselves the power to control speech – to silence their opposition.

We will hear from the other side that there is nothing to worry about. 

That all they wish to do is impose “reasonable” regulations. 

Of course, the point of the First Amendment is to prevent this Congress from making determinations about what speech is “reasonable” and therefore permitted, and what is “unreasonable” and therefore prohibited.  

And we don’t need to speculate about what the majority will deem reasonable and what it will deem unreasonable. 

As I described at a recent Rules Committee hearing on the DISCLOSE Act, prior consideration of that legislation has shown us what the majority regards as “reasonable.” 

The DISCLOSE Act is the majority’s most recent version of their now biannual attempt to create a new regulatory structure to deter speech.  It is precisely the kind of legislation we can expect to see more of if the majority grants itself the power to regulate speech through the amendment we are debating today. 

So, with past as prologue, let us recall what happened when the DISCLOSE Act was considered by the House in 2010.  

Not surprisingly, the restrictions and obligations it imposed were applied to groups disfavored by the majority. 

A number of corporations were simply prohibited from speaking. 

Government contractors and TARP recipients were prohibited from making independent expenditures.

During floor consideration, an amendment was added to also prohibit speech by companies that explore and produce oil and gas on the Outer Continental Shelf – the bill was on the floor soon after the Deepwater Horizon spill, you see, so this was an easy target.

Not surprisingly, the majority thought it was perfectly reasonable to prevent any of these companies from speaking but did not think it necessary to extend those restrictions to the unions that might represent the workforce in these companies. 

Republican amendments to extend the restrictions to those unions were rejected. 

The majority did not find them “reasonable” apparently.

In some cases, groups were excluded from the disclosure obligations solely because the votes were not there to include them.

That is what happens once the Congress starts imposing speech restrictions – the restrictions get applied to whoever doesn’t have enough votes in Congress to prevent them.

Imposing speech regulations based on the whims of whatever party happens to be in the majority in Congress at a given time is not “reasonable” but it is exactly what happens once we start down this path. 

And the majority has not deviated from it.

The Rules Committee hearing revealed that the DISCLOSE Act continues to exempt groups sympathetic to the majority from the obligations it would impose on others.

Mr. President, it may be a natural impulse to wish those who are criticizing us would stop, but the First Amendment does not allow us to make it stop. 

We do not have the power to silence our critics, and we should never have it.

I know my friends on the other side of the aisle are upset about the ads that are attacking them and their agenda. 

I know they want those ads to stop. 

Well, we don’t get to choose who gets to speak. 

The proponents of this amendment, and the critics of the Citizens United decision, are clearly exercised by the prospect of corporate speech.  It is obvious that they fear how such speech might influence the public policy debate in this country and their own electoral prospects. 

They have decided that these voices should not be heard and must be suppressed.

They claim to be motivated only by a desire to promote the health of this democracy.  They claim they just want all voices to be heard and want to make sure powerful corporations do not drown out the voices of others. 

This claim is belied by one simple fact Mr. President. 

There are and always have been large, powerful and wealthy corporations that have exerted enormous influence over our politics in this country – our culture even – but the majority has not had a problem with them. 

I am speaking, of course, of media corporations. 

They were never limited by the electioneering restrictions imposed on other corporations.  The Citizens United decision simply leveled the playing field and ended that nonsensical distinction. 

That logical and constitutional result alarms the majority though because they fear that other corporations may not be as sympathetic to them as media corporations have been. 

They therefore regard it as perfectly “reasonable” to allow media corporations to say whatever they want, while at the same time regarding it as intolerable that other corporations be permitted to do the same.   

While the amendment they propose would allow them to prohibit speech by any corporation, including the media, we can expect their allies will continue to enjoy the right to free expression. 

Their opponents, however, will be targeted. 

Those whose views align with the majority should draw no comfort from this fact though, Mr. President. 

Majorities change.

The whole point of the First Amendment is to ensure that the people’s right to speak is not dependent on the whims of whatever majority happens to be in power at a given time.

People have a right to express themselves and that right is not limited to whatever this body might deem to be “reasonable.” 

We have a free marketplace of ideas. 

We don’t entrust this Congress with the power to decide what ideas will get expressed, or how much they will be expressed.  

The majority proposes this amendment because they want that power, but they should never have it. 

Neither should any future majority.

We have already seen from the rule change they imposed unilaterally just a few months ago that this majority is willing to jettison long standing traditions and practices for short term political gain.

This mentality has already done serious and possibly irreparable damage to this body. 

But apparently, destruction of the Senate rules will not suffice. 

Now the Constitution itself must yield.

The interests of the majority are paramount and everything – everything – even our most basic principles must be sacrificed to it.  

Thankfully, the rules for ratification cannot be discarded as easily as the rules of this body.

To ensure against precisely what the majority wishes to do - alter the Constitution for their own benefit - the Founders made it very hard to amend.

Two-thirds of each House of Congress must agree to an amendment. 

Then three quarters of the states must ratify it.

That is not going to happen. 

But the fact that they will not succeed does not mean we should not take their threat seriously. 

To even begin down this path shows a remarkable contempt for our political traditions and founding documents. 

It reveals the desperation of the majority at the same time it reveals the wisdom of the Founders. 

In seeking to amend the First Amendment to protect themselves, the majority reminds us again how lucky we are to live in a country with a Constitution that prevents such abuses. 

I am profoundly grateful for the wisdom of the Founders and proud to stand here today to defend the First Amendment they gave us. 

I will oppose this amendment, today, tomorrow and forever and I ask my colleagues to do the same.

The Resolution would need a two-thirds majority to be approved by the Senate. House approval would also require a two-thirds majority. Amendments to the Constitution must also be ratified by three-fourths of the States.