Paycheck Fairness Act -- Motion to Proceed

Floor Speech

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Mr. GRASSLEY. Mr. President, as we all know, we are discussing a constitutional amendment sponsored by 45 members of the Democratic Party to restrict free speech.

This constitutional amendment pending before the Senate is a real threat to one of the two most vital developments in our Nation's legal and constitutional history.

One of those legal successes was the development of a body of civil rights laws to protect the basic freedoms of all Americans. That took a long time and required massive effort and even bloodshed as well as judicial rulings. The second development was the enhancement of free speech as protected by the First Amendment. That process also required massive time and effort and judicial rulings.

Both of these struggles were made necessary because the Supreme Court failed to give effort to the intent of the authors of the First and 14th Amendments in guaranteeing liberty and equality. It took President Jefferson assuming office--not the courts interpreting the First Amendment--to address the criminalization of free speech under the Alien and Sedition Acts.

When Congress in the 1830s and 1840s denied the right to petition for redress of grievances to those who opposed slavery, it took John Quincy Adams and Congress--not a court relying on the First Amendment--to change those rules.

The reality is the First Amendment had a very limited scope until well into the 20th century. After a judicial sea change, the courts now give broad protection to free speech.

Political speech is now constitutionally protected unless the government has a compelling interest, and the restriction is narrowly tailored to further that compelling interest. Those free speech battles took many years to win. If the arguments that proponents of this constitutional amendment are making were adopted, we would be turning the clock back on 100 years of progress of protecting free speech. The constitutional amendment before us is a content-based restriction on free speech.

Speech influencing campaigns for elective office would be restricted. No other speech content, however, would be restricted. Some of that speech by corporations and other entities could be prohibited entirely, and those who engage in such speech could be criminally prosecuted.

The Supreme Court has allowed content-based restrictions on speech in only a very few cases, such as obscenity, defamation, child pornography, and threats.

The proposed constitutional amendment would restrict the most important speech the First Amendment protects--and that happens to be core political speech. It would treat that speech as if it were like child pornography.

In the Judiciary Committee, one Democrat actually compared core political speech to child pornography. It is incredible that would be said. Comparing the core political speech the Bill of Rights protects to the video recording of an unspeakable crime against a child doesn't make any sense.

That same Senator and the sponsor of the amendment on the floor both argued that campaign-related speech can be restricted because free speech doesn't include the right to falsely shout fire in a crowded theater. This is the argument that would reduce free speech protection in this country to the minimal level that it enjoyed 100 years ago, before there was expansion of protection under the First Amendment.

When Justice Holmes made that famous fire statement in that case, the Supreme Court wasn't being asked to rule on the legality of a conviction of someone who had falsely yelled fire in a crowded theater. Rather, the case involved a man who was convicted of distributing leaflets urging young men not to comply with the draft laws during World War I.

Justice Holmes compared that peaceful protest to a shout that would immediately lead to serious bodily injury and perhaps loss of life for larger numbers of people. That is obviously a false analogy.

Those who speak in support or opposition to candidates are comparable then to those who pass out leaflets in opposition to government policy. It is obviously false analogy to compare that speech designed to persuade fellow citizens in their voting to falsely yelling fire in a crowded theater.

It is easy for the government to determine whether a cry of fire is true or false, but a campaign ad isn't often clearly false. Even a false ad doesn't create the risk of death. When a government prosecutes those who falsely cry fire in a crowded theater, that prosecution will have the beneficial effect of deterring others from engaging in that same conduct. But when government criminalizes ads that it determines are false or limits how much can be spent on those ads, backed up by criminal penalties, that in fact will produce the harm of reducing the likelihood that others will speak about important public subjects--hence, weakening our democracy.

Justice Holmes quickly came to realize the errors of his ways. In subsequent Supreme Court decisions, he and Justice Brandeis dissented when the majority applied the clear and present danger test that the fire-in-the-theater analogy supported. They voted to protect peaceable free speech. They understood that in a free country, the way to address controversial speech was through speech by others with different views--not by shutting up people with the threat of jail.

It took a long 50 years for the Court to adopt the protections for free speech that Justice Holmes and Judge Learned Hand had advocated to no avail. And if this constitutional amendment passes, that glorious history of the understanding of the importance of free speech in a democracy will be undone.

It was only a few years after its 1969 ruling providing strong constitutional protections of free political speech that the Supreme Court ruled on its first campaign speech case; that is, Buckley v. Valeo.

In that case the Court ruled that the independent expenditures could be limited. The decision wasn't the work of supposed conservative judicial activists. Wealthy individuals have been able to spend unlimited amounts on campaign-related speech since then. That isn't a novel development that dates only to Citizens United. Buckley also permitted nonprofit corporations to engage in independent expenditures designed to influence campaigns. Corporations and others could contribute to these nonprofit entities.

In context, Citizens United represents an advance over the prior law, especially in promoting transparency. Floyd Abrams, the Nation's foremost First Amendment litigator, wrote to the Judiciary Committee in questions for the record:

What Citizens United did do, however, is permit corporations to contribute to PACs that are required to disclose all donors and engage only in independent expenditures.

If anything, Citizens United is a pro-disclosure ruling which brought corporate money further into the light.

So I don't think my colleagues are correct in saying this amendment is about so-called ``dark money.'' And limiting speech is totally separate from disclosure of speech. This amendment says nothing about disclosure.

It is the constitutional amendment, not Citizens United, that fails to respect precedent. It doesn't simply overturn one case. The Supreme Court has repeatedly found that engaging in campaign speech is fully protected by the Bill of Rights. Time after time it has ruled correctly that because effective speech can only occur through the expenditure of money, government cannot restrict campaign expenditures by candidates or others. Repeatedly, the Court has recognized that effective campaign speech requires that individuals have the right to form groups that will spend money on campaign speech. Those Supreme Court decisions were joined and sometimes written by great liberal Justices.

This proposal represents a radical departure from long-established free speech protections. It is at war with an entire body of jurisprudence. It extends well beyond corporations.

Despite the sponsors of this amendment limiting their criticism to one or two cases, the amendment would overturn not just those few cases but 12 Supreme Court decisions, according to that expert, Mr. Abrams. As the amendment has been redrafted, it may be only 11.5 cases now, depending upon what the word ``reasonable'' means. And why the word ``reasonable'' was left out in the first place and why it was included now, I don't know, but it is included now because people realize the extremities to which this constitutional amendment would take it. But even with the word ``reasonable,'' that extreme position would take us down a slippery slope, amending the Bill of Rights, and I don't think we want to go down that slope.

Justice Stevens, whom the committee Democrats relied on at length in support of the amendment, voted with the majority in three of the cases the amendment would overturn.

It is hard to imagine what would be more radical than the Congress passing a constitutional amendment to overturn a dozen Supreme Court decisions that have protected individual rights. Free speech would be dramatically curtailed. That is why the arguments made here on the Senate floor that matters were fine before Citizens United 4 years ago are beside the point.

Also off-point is the argument by another Democrat that the debate here concerns only whether Citizens United was correctly decided under the First Amendment and that the overall protection of free speech is not at issue whatsoever. The amendment before us doesn't just reverse Citizens United. It doesn't just take us back 4 years. It reverses decades of precedent that gave broad protection to free speech. That is why the stakes are so high and why we are spending so much time debating this constitutional amendment.

Yet another argument was raised on the floor that overturning Citizens United through a constitutional amendment is comparable to overturning earlier Supreme Court decisions on women's suffrage or poll taxes. In response to a written question from the Judiciary Committee, the same scholar, Mr. Abrams, forcefully rejected any such comparison. He wrote this back to us Senators:

The notion that a Supreme Court opinion protecting First Amendment rights should be viewed as comparable to one depriving slaves or women of their rights is both intellectually flawed and morally repugnant.

How can constitutional amendments assuring freedom of slaves or equality for women possibly be viewed as analogous to taking away--

Emphasis on ``taking away''--

citizens' First Amendment rights?

This morning the lead sponsor of the amendment contended that the amendment wouldn't lead to banning books or putting people in jail. He also claimed that Congress had not provided for such results in earlier years and would not do so now. He said that even if Congress tried, it would be very unlikely that both Houses would pass such a measure. He maintained that even if such extreme measures were enacted, the Supreme

Court would strike down them as unreasonable. It reminds you that the alien and sedition laws never put anybody in prison. But this sponsor did not deny that Congress could, in fact, pass legislation that would have the effect the opponents have raised. What does he think would happen if someone violated the reasonable spending limits? Some government agency would have to enforce them with criminal penalties. Violating them would subject people to jail for speaking. The Obama Justice Department, which would enforce those criminal laws, told the Supreme Court that if Citizens United had been decided as the sponsors of the amendment desire, it would prosecute book publishers.

In this country constitutional rights do not depend on the kindness of politicians not infringing them. Otherwise, we wouldn't have had the Alien and Sedition Acts. Those limits prevent Congress from violating rights in the first place.

The Bill of Rights was adopted precisely because the citizens rejected the argument that the Constitution's difficult passage to legislative enactment by itself was adequate to protect fundamental liberties such as free speech. And it is cold comfort that after the election is over and they have been barred from speaking, citizens can spend money to ask the Supreme Court to reverse their convictions.

I have made clear that this amendment abridges fundamental freedoms that are the birthright of Americans. The arguments made to support it are very unconvincing. The amendment will weaken, not strengthen, democracy. It will not reduce corruption but will open the door for elected officials to bend democracy rules to benefit themselves, and that is benefiting incumbency.

The fact that the Senate is considering such a dreadful amendment is a great testament to the wisdom of our Founding Fathers in insisting upon and adopting the Bill of Rights in the first place, a necessary forerunner to whether the Colonies would approve the Constitution in the first place.

Justice Jackson famously wrote:

The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts.

One's right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections.

We must preserve our Bill of Rights, including our right to free speech. We must not allow officials to diminish or ration that right. We must not let this proposal become part of the supreme law of the land.

I yield the floor.

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