General Counsel, Liberty Justice Center
Cook County’s Nov. 6 ballot contains a series of advisory questions to voters, the results of which are nonbinding but often used to test – if not justify – future legislative initiatives. Placed on the ballot by vote of the Chicago City Council resolution, some of these questions are mundane, such as one asking whether the prohibition on alcohol sales should continue in the 29th precinct of the 17th ward.
But there is also a question that should cause voters particular concern. This question asks whether the U.S. Constitution should be amended to “empower the federal government and the states to regulate and limit political contributions from corporations.” Different forms of this same question are also appearing on the DuPage and Champaign county ballots. But what is this question really asking?
It is asking whether the First Amendment could be amended to allow government to abridge the free speech and association rights of specific groups of people. The implications of such an amendment are staggering and would shake the very foundation of our free society.
It is simply inconceivable that the Bill of Rights would be amended to abridge, not protect, fundamental rights. To be clear, in the case of campaign finance law, the federal government and the states are already permitted to regulate direct political contributions (which can take the form of money or other coordinated efforts such publications and media campaigns), to candidates from corporations, political action committees and individuals alike, including here in Illinois. But amending the First Amendment in this way would allow government to suppress, if not ban, groups of people joined together in a corporate form from engaging in independent political speech, under penalty of fine and criminal sanction.
Presumably, this question was inspired by opponents of the Supreme Court’s 2010 Citizens United decision, which at best has been widely misunderstood and at worst has caused a sort of misplaced hysteria, replete with the mantra that “corporations are not people.” In truth, that decision was largely consistent with decades-long Supreme Court precedent that has recognized First Amendment protection extends to corporations, which are at essences groups of individuals joined together, and protects independent political speech from government infringement. In striking down the federal law at issue, which had banned corporations from engaging in independent political speech in certain circumstances, the Supreme Court held that such speech does not lose First Amendment protection simply because its source is a group of individuals associating in the form of a corporation, saying:
“If the First Amendment has any force, it prohibits Congress from jailing or fining citizens, or associations of citizens, for simply engaging in political speech.”
The Supreme Court offered a series of examples of independent speech that could have been banned and subject to felony prosecution pursuant to the federal law it struck down in that case. These examples included: ads run by the Sierra Club urging the public to disapprove of a congressman who favors logging in national forests; a book published by the National Rifle Association urging the public to vote for the challenger because the incumbent supports a handgun ban; and a website the American Civil Liberties Union created advocating for a presidential candidate in light of that candidate’s defense of free speech.
We must set aside the rhetoric and recognize the true magnitude of this ballot question, which goes to the heart of our nation’s founding principle that political speech is indispensable to decision-making in a democracy and is a means to hold officials accountable to the people. This principle, according to Citizens United, is “no less true because the speech comes from a corporation rather than an individual.”
Our responses to the ballot questions are advisory but may be used by elected officials as launching pads to justify future action. Where amending the U.S. Constitution is concerned, we must tell our elected representatives where we stand by answering a resounding no to the question that asks whether government should be empowered to abridge our First Amendment rights.