Constitutional Amendment Would Gut Rights for Organizations

Experts: Amendment would restrict what advocacy groups could say and do

Supreme Court / AP
June 19, 2013

Legal experts say a constitutional amendment proposed by Senate Democrats would eliminate all constitutional rights for nonprofit groups and many religious organizations.

Constitutional scholars also suggested the amendment could allow the National Security Agency—currently under fire for its controversial intelligence gathering techniques—to seize information on Americans at whim.

The amendment is an attempt to reverse the Supreme Court’s 2010 decision in Citizens United vs. FEC, which struck down restrictions on political speech by corporations, unions, and nonprofits.

Rather than simply reversing that decision, the amendment offered by Sens. Jon Tester (D., Mont.) and Chris Murphy (D., Conn.) would eliminate all constitutional rights not only for for-profit corporations but also for nonprofit groups and many churches.

Hans von Spakovsky, a senior legal fellow at the Heritage Foundation, said the measure "is one of the dumbest amendments yet proposed."

It would restrict not just those groups’ First Amendment rights but all of their constitutionally-protected liberties, according to Eugene Volokh, a law professor at UCLA.

"The proposed amendment would authorize Congress, states, and local governments to, for instance, restrict what most newspapers publish, restrict what most advocacy groups, such as the ACLU, the Sierra Club, and the NRA say, restrict what is said and done by most churches, and seize the property of corporations without just compensation," Volokh told the Washington Free Beacon in an email.

The text of the amendment states, "The words people, person, or citizen as used in this Constitution do not include corporations, limited liability companies, or other corporate entities."

"Corporate entities," Volokh noted, include most media companies, nonprofit groups, and religious organizations. "Under the proposed amendment, all these groups—as well as ordinary businesses—would lose all their constitutional rights."

Controversy over revelations that the National Security Agency may have collected information on Americans through telecommunications and Internet companies could fuel concerns over a measure that would eliminate those companies’ rights to decline requests for information from the federal government.

The Tester-Murphy amendment would eliminate "any rights to due process when a corporation’s property is seized," Volokh said, allowing the NSA or any other government body to seize those companies’ customer records without due process.

A lawsuit brought by the American Civil Liberties Union against the NSA in light of recent revelations about its intelligence-gathering activities depends on the theory that the ACLU and other nonprofit groups have constitutional rights, according to Wendy Kaminer, a board member of the Bill of Rights Defense Committee.

"ACLU v. Clapper, filed in the wake of the [NSA leaker Edward] Snowden revelations, is based on the ACLU's First and Fourth Amendment rights, which, according to progressives, ACLU should not possess," Kaminer wrote on Monday.

The Tester-Murphy amendment attempts to safeguard constitutional rights for individuals by stating that it shall not "limit the people’s rights of freedom of speech, freedom of the press, free exercise of religion, freedom of association, and all such other rights of the people."

Volokh insists that clause would not protect newspapers or nonprofits "on the theory that restricting those organizations’ speech would deny the constitutional rights of individual reporters or organization leaders."

"The government would still be freed to restrict those reporters and leaders from speaking using corporate resources, which is to say speaking in the pages of the newspaper or using the offices or assets of the organization," he noted.

Neither Tester’s nor Murphy’s offices returned requests for comment.