Revealingly, the Democrats’ proposed constitutional amendment also included an express provision stating, “Nothing in this article shall be construed to grant Congress the power to abridge the freedom of the press.” What this means, in plain English, is that while Senate Democrats sought to empower Congress to restrict individual citizens’ political speech rights, they did not want to apply that same treatment to giant media corporations like CNN and the New York Times.
I made these arguments vigorously in the debate that ensued in the Constitution Subcommittee, and the position became so untenable that Democrats retreated and introduced a revised amendment. This time, their proposed constitutional amendment no longer applied to individuals—so the little old lady with her five-dollar yard sign was no longer swept in; instead, the terms of the new proposed amendment applied to any and all expenditures designed to influence an election made by any corporation (except for favored media corporations).
At the Constitution Subcommittee mark-up on this proposed amendment, a radical rewriting of the free speech protections contained in the First Amendment, I posed three simple questions. First, should the federal government be able to ban movies? Second, should the federal government be able to ban books? And third, should the federal government be able to ban the NAACP from speaking on matters of politics?
To all three of the questions, I gave a resounding “hell no.” But under the terms of the Democrats’ proposed constitutional amendments, the government would have the power to do all three.
When it came to banning movies, that was not even a hypothetical. Citizens United, you will recall, was a conservative nonprofit corporation that had made a movie critical of Hillary Clinton. And Senate Democrats now wanted to give the federal government the constitutional authority to punish anyone for criticizing Hillary Clinton or any other political candidate.
As for the question of books, that was, in fact, a hypothetical posed to the Obama Justice Department during the Citizens United oral argument at the Supreme Court. Justice Alito asked Malcolm Stewart, the deputy solicitor general of the United States at the time, whether “the government’s position is that the First Amendment allows the banning of a book if it’s published by a corporation.” In essence, Justice Alito wanted to know whether it was the legal position of the Obama Justice Department that the federal government has, or ought to have, the authority to fine a bookseller for publishing a book that was critical of a political candidate.
The fact that this was even a live question during a Supreme Court oral argument ought itself to be deeply troubling. The Obama Justice Department, remarkably, answered in the affirmative. As Deputy Solicitor General Stewart soon thereafter explained to Chief Justice John Roberts in the same line of questioning, it was the Obama Justice Department’s legal position that the government “could prohibit the publication” of such a book by “using… corporate treasury funds.”
It’s not just Citizens United, of course, that is a corporation—Paramount Pictures, Sony Studios, every major movie maker in America and, likely in the world, is a corporation. And under the Democrats’ proposed constitutional amendment, the federal government could regulate and punish if movies ever criticized politicians. Simon and Schuster, as it so happened, was the book publisher of Hillary Clinton’s book that had just come out as we were debating this amendment. I pointed out that, under the Democrats’ proposed constitutional amendment, the federal government could fine or perhaps even criminally prosecute Simon and Schuster for publishing the book if, in even one passage of the book, it either criticized or advocated for any federal candidate in any federal election.
And as for the NAACP, the NAACP is itself a corporation. It is a corporation that was formed to fight against bigotry and racial injustice. And when it comes to the proposition that government power might be used to attack the NAACP—to silence the NAACP, to persecute the NAACP—there are decades of history that show such government power has actively been used for precisely that objective. Indeed, elected politicians in Jim Crow states (virtually 100 percent of them elected Democrats) regularly used government power to persecute the NAACP. And the Supreme Court, in the landmark and unanimously decided 1958 case of NAACP v. Alabama ruled that the state government (under Democratic governor Big Jim Folsom) could not force the NAACP to hand over the names of its donors because those individuals would be unduly subject to government persecution.
Another example I pointed to was Saturday Night Live. For five decades, SNL has witheringly parodied politicians from both sides of the aisle. Chevy Chase tumbling down the stairs as Gerald Ford. Phil Hartman as a doddering (but secret mastermind) Ronald Reagan. Dana Carvey brilliantly as both George H. W. Bush (“Na ga do it!”) and Ross Perot (“Giant sucking sound!”). Darrell Hammond as a lascivious Bill Clinton arguing with John Goodman as Moses over what is and isn’t prohibited by the Ten Commandments. Will Ferrell as George W. Bush sharing his campaign “strategery.” Kate McKinnon as a dishonest, power-hungry Hillary Clinton. Larry David embodying a grumpy, germophobic Bernie Sanders.
On the latter, I jokingly told Bernie on the elevator in the Capitol that “Larry David does a better Bernie than you do!” Characteristically, Bernie simply harrumphed.
Over the years, SNL’s portrayals have had tangible political impact. Chevy Chase’s bumbling caused many Americans to think of Ford as a klutz, even though—as an All-American college football player at Michigan—he likely was the best athlete ever to occupy the Oval Office. Tina Fey’s uncanny Sarah Palin resulted in many Americans to this day believing that Palin actually said “I can see Russia from my house!” (it was Fey, and not Palin who said that).
I’ve grown up on SNL’s portrayals. I haven’t always
