I had been generally aware that some congressmen who don’t like the First Amendment and who particularly dislike the U.S. Supreme Court opinion in Citizens United v. FEC, 130 S.Ct. 876 (2010), wanted to get around the decision by passing a constitutional amendment to overturn it.
But I didn’t pay much attention, assuming that people would never willingly give up their First Amendment right to freedom of speech.
When I read the actual text of the proposed amendment, though, I was truly shocked. The proposed amendment doesn’t actually overturn Citizens United. Instead, it preserves First Amendment rights for organizations that support tyranny and strips them from any organization opposed to tyranny.
Citizens United, in contrast, protected the rights of all corporations, regardless of whether they were formed to make money or promote some political agenda.
Section 1 of the proposed amendment reads: “The rights protected by the Constitution of the United States are the rights of natural persons and do not extend to for-profit corporations, limited liability companies or other private entities established for business purposes or to promote business interests under the laws of any state, the United States, or any foreign state.”
Note the language “or to promote business interests.”
Thus, a nonprofit corporation formed with the mission of outlawing private property retains its First Amendment rights. But a nonprofit corporation formed with the mission of protecting private property rights and individual liberty has none.
Suppose that I started a nonprofit corporation with a mission to restore the U.S. Supreme Court opinion in Lochner v. New York, 198 U.S. 45 (1905), as binding precedent.
Would that be a corporation “to promote business interests”? I would argue not.
Lochner pitted small bakery owners and their employees against two very powerful special interest groups – large unionized bakeries and their employees’ unions. Lochner was not a victory for business, but a victory for everyone against big businesses and big unions.
But ever since, progressives have distorted the facts and the law to portray Lochner as a triumph of “business interests” over the public welfare.
As a result, whether my political action committee would retain First Amendment rights would depend on whether or not I can disabuse some judges of the lies they learned in law school.
There’s a big difference between being pro-liberty or pro-free market, and being pro-business. The crony capitalism perfected by the Bush and Obama administrations is certainly good for businesses with connections in the government. But it has been disastrous for the rest and the free market overall.
So, is a pro-liberty PAC that opposes government interference in the free market for or against “business interests”? I can’t answer that question, but I know I don’t want my First Amendment rights to depend on how a panel of judges answers it.
But even more shocking is the plain text of the proposed amendment isn’t even limited to freedom of speech rights. It says business entities have no constitutional rights at all. In other words, the government could simply seize the assets of a corporation or a family farm and not be required by the Takings Clause to pay just compensation.
The government could search our for-profit law offices without a warrant.
When I heard of the proposed amendment, I assumed it was just an attack on the First Amendment. But actually reading it, I see its purpose is not to repeal Citizens United, but to strip all constitutional rights from everyone who engages in any sort of productive, gainful employment or who deigns to speak on behalf of those who do.
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