James Madison thoughtfully wrote the language for the first amendment in 1791. Chuck Schumer thinks it needs improvement.
Sen. Chuck Schumer (D- NY) is leading a charge to change the U. S. Constitution's First Amendment.
Schumer says the First Amendment gives too much power to the people to promote political ideas - especially when it comes to putting their money where their mouth is. His hoped-for constitutional amendment, Senate Joint Resolution 19, would rectify this as it right sizes the First Amendment - first written in 1791.
He is aided by a healthy cohort of Democrats.
The First Amendment guarantees freedom of religion, speech and the press, as well as the right to petition the government and peaceably assemble.
"The First Amendment is sacred, but the First Amendment is not absolute," said Schumer, in Orwellian language, since by definition that which is sacred is the one thing that is absolute.
"By making it absolute, you make it less sacred to most Americans," Schumer said.
The proposed amendment would permit Congress and state governments to decide how much individuals, independent groups, unions, corporations, not for profits, or grassroots organizations can spend to get their message heard during campaign seasons about topics such as the role of government, law, politics, justice, political ideals, the direction of the nation, if government views it as helping or hurting a candidate or party.
It would also grant government the power to limit how much a candidate can spend to get elected, something that would be new to the USA.
The Schumer amendment is aimed at offsetting the Supreme Court's decision in the case of Citizens United v. Federal Elections Commission. In that case, the Court, in a 5-4 vote, in 2010, tossed out the government's attempt to limit "independent expenditures," ruling that, despite the government wanting to prevent it, a not-for-profit group had every right to distribute a movie criticizing Hillary Clinton, even though she was running for president.
In the majority opinion, Justice Anthony Kennedy wrote: "If the First Amendment has any force, it prohibits Congress from fining or jailing citizens, or associations of citizens, for simply engaging in political speech."
Schumer's proposed Constitutional Amendment would "overturn" the Citizen United ruling by allowing Congress and state governments to fine and imprison citizens who spend more money on political speech than the government allows.
Forty-one Democratic senators are co-sponsors.
Since the amendment would only limit the amount of money - to be determined by future government - people can raise and spend on the promotion of political ideals, a citizen could still verbally criticize Hillary Clinton.
The limitation would be that, while they can talk as much as they like, people would not be able to pay more than government allows to be heard.
Schumer said the Senate will vote this year on the amendment.
In order for Schumer's amendment to pass, it is subject to Article Five of the U. S. Constitution which provides that any amendment to the Constitution must be approved by two-thirds of each house of Congress — then ratified by three quarters of the states — before taking effect.
Since not a single Republican supports the measure, the Schumer amendment stands only a small chance of gaining the required two-thirds House and Senate majorities needed for approval.
According to the Schumer amendment, the states and federal governments would have the power to regulate the "raising and spending of money" through a wide range of means "to advance the fundamental principle of political equality for all."
The Schumer amendment, originally proposed by Sen. Tom Udall (D-NM), says nothing shall abridge the freedom of the press.
Under the proposed amendment, a newspaper corporation can still devote as many pages, and spend as many dollars in ink and paper it wishes, to support or criticize a candidate, or a candidate's ideas.
The amendment however would limit every other type of corporation, union, grassroots group or individual from raising and spending more than government allows.
If ratified, the amendment may also limit some freedoms of the press, at least the freedom to start a press.
If the new amendment does not prohibit who can start a newspaper, there would be nothing to stop any corporation, union, group or individual - the very people the amendment is meant to stop from spending too much money- from forming a newspaper corporation (or TV News Corporation [and buy air time]) and spend as much money as they want to support or oppose a candidate.
The government, or its courts, might have to place limits on who could form newspapers, perhaps allowing only government authorized or licensed media to publish or broadcast, to prevent skirting the new amendment.
The Schumer amendment would also reverse the Supreme Court's 1976 Buckley v. Valeo ruling that prevented Congress from trying to limit campaign spending.
The Court ruled then (as has been the law of the land throughout the history of America) that putting limits on the amount a candidate can spend on his or her own campaign is a curtailment of First Amendment rights since spending money from oneself, or donated by another, to promote one's candidacy, and political ideals, constitutes a form of speech.
Indeed, the spending of money is inseparable from speech meant to persuade others since, other than standing on a soapbox in the village square, almost every type of speech costs money to get oneself heard.
Even email accounts cost a fee for internet service.
The greater voice you want, the greater the cost - to somebody.
Even going on TV to promote the goodness of America will cost some sponsor money.
Schumer's amendment would give government the sole authority to decide who can spend how much to get their voice heard.
Perhaps the motivation behind the Schumer amendment was signaled by retired Supreme Court Justice John Paul Stevens who testified for the measure; "All elected officials would lead happier lives and be better able to perform their public responsibilities if they did not have to spend so much time raising money," he told the Senate.
Of course, all "elected officials," known as incumbents, would "lead happier lives" if they could restrict other people from raising money to campaign against them.
The Schumer amendment will be helpful in ensuring that elected officials have an easier time getting re-elected, which will make them happier.
Limiting the amount candidates can spend in an election favors incumbents since incumbents, with greater name recognition, the power of incumbency, the ability to generate headlines through their office, and the ability to hand out taxpayer money to special interests, would not have to campaign as hard and without fear that an opponent could spend enough money to get equal name recognition or get his ideas fully known to voters.
While the odds are against him, Schumer hopes he can persuade the people by using his office, and taxpayer money, to engage in the kind of political speech he would limit individuals from spending too much money on.
"I respect my colleagues' fidelity to the First Amendment, but no amendment is absolute," Schumer said. "Some support limitations on pornography. That's a limitation on the First Amendment. Some support legislation saying you can't yell fire in a movie theater. That's a limitation on the First Amendment."
The Schumer limitation on the First Amendment would protect society from an even greater danger: That someone would put up enough money to field a candidate that might persuade people that fascist-leaning, self-serving Schumer should be voted out of office.