Proposed Constitutional Amendment Would Strip Pro-Business (But Not Anti-Business) Non-Profits of First Amendment Rights

I blogged about the Sen. Sanders / Reps. Deutch, DeFazio, Hastings, McDermott proposed constitutional amendment last week, but an e-mail from a reader led me to one other problem with the amendment. The amendment, you may recall, reads:

Section 1. 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.

Section 2. Such corporate and other private entities established under law are subject to regulation by the people through the legislative process so long as such regulations are consistent with the powers of Congress and the States and do not limit the freedom of the press.

Section 3. Such corporate and other private entities shall be prohibited from making contributions or expenditures in any election of any candidate for public office or the vote upon any ballot measure submitted to the people.

Section 4. Congress and the States shall have the power to regulate and set limits on all election contributions and expenditures, including a candidate’s own spending, and to authorize the establishment of political committees to receive, spend, and publicly disclose the sources of those contributions and expenditures.

What the amendment would do with the speech of nonprofits is not clear: Section 1 says constitutional rights “are the rights of natural persons” — which doesn’t include groups such as the ACLU, the NRA, the NAACP, and so on — but at the same time says that they “do not extend to for-profit corporations, limited liability companies, or other private entities established for business purposes or to promote business interests,” a category that also doesn’t include such non-business-related nonprofits. So the proposal is ambiguous as to those groups.

But non-profits that are “established … to promote business interests” — even when they are not funded by business corporations, but only by private individuals — clearly would be denied constitutional rights by the proposed amendment. So a non-profit aimed at promoting “business interests” would be stripped of the freedom of speech and of the press (and other rights), but a non-profit aimed at opposing those same business interests would retain those rights.

Of course, section 4 specifically says that the government “shall have the power to regulate and set limits on all election … expenditures,” with no exception for nonprofit corporations, pro-business or otherwise — so maybe after all the amendment would equally strip all nonprofits of the right to speak about elections. The government would simply have to set a $100 limit on nonprofits’ election expenditures, and that would strip them of the ability to send out mailings, buy newspaper ads, buy billboards, and even spend more than $100 in employee salaries to maintain Web sites. At least that would be equality, albeit equality of speech suppression.

But as to non-election-related speech, pro-business nonprofits would be stripped of constitutional rights more generally by section 1, while non-pro-business nonprofits would presumably still have First Amendment rights (albeit limited as to election-related speech by section 4).

UPDATE: The original post on how the amendment’s text applies to restrict newspapers and other media organizations is here.