CNN thinks progressive laws override the Constitution

CNN thinks progressive laws override the Constitution
Brian Stelter (Image: YouTube screen grab via CNN)

CNN doesn’t understand the basics of America’s Constitution. To amend the Constitution, Congress can’t just pass a law. It has to vote to amend the Constitution by a two-thirds vote, and then three-quarters of the states have to approve amending the Constitution, too. So Congress alone can’t change the Constitution.

But CNN thinks our liberal Congress can amend the Constitution just by passing laws. CNN indicated that in discussing H.R. 1, a proposed law that Democrats passed in the House of Representatives by a close, party-line vote. Three CNN reporters wrote: “The bill does far more than expand voting access . . . It also would amend the Constitution to overrule Citizens United, a controversial Supreme Court decision that determined corporations could spend unlimited amounts of money in elections.”

But H.R. 1 doesn’t amend the Constitution — it’s just a proposed federal law. Federal laws don’t amend the constitution, which is why the Supreme Court occasionally strikes down laws passed by Congress for violating the Constitution — such as the campaign finance laws struck down as unconstitutional in McCutcheon v. FEC and Buckley v. Valeo.

Like many CNN articles and broadcasts, CNN’s coverage of H.R. 1 contained misleading claims. Contrary to what CNN suggested, the Supreme Court’s Citizens United decision didn’t say there are no limits on corporations. Corporations, unlike individuals, can’t make campaign donations to members of Congress or candidates in federal elections. That’s been forbidden by federal law ever since 1907. On the other hand, corporations can criticize politicians, even when they are running for office. The Citizens United case involved a conservative non-profit corporation that produced a film critical of Hillary Clinton, called Hillary: The Movie.  The Supreme Court ruled the movie was protected by the First Amendment, spurning the government’s argument that it could ban movies and books produced by incorporated entities (including non-profits) about political candidates.

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The Supreme Court’s Citizens United decision did not create the idea that corporations have free-speech rights.  The Supreme Court had repeatedly ruled that companies have First Amendment rights in its earlier decisions, such as First National Bank of Boston v. Bellotti (1978) and New York Times Co. v. Sullivan (1964). The Supreme Court first ruled in favor of a corporation’s constitutional rights in Dartmouth College v. Woodward (1819). So Citizens United didn’t create rights for corporations out of thin air.

CNN simplistically depicted H.R. 1 as being about “voting rights” and curbing corporate privilege, leaving the impression that only a conservative Republican would oppose it.

But that’s wrong, as legal scholar Walter Olson, who supported Joe Biden for president, explains. Far from being just a “voting‐​rights bill,” he says, “H.R. 1 is a sprawling omnibus measure that would assert federal control over a broad array of areas of American life related not just to elections and campaigns but to the dissemination of opinion about politics and policy,” and other unrelated subjects. And “it is full of provisions that are hostile toward speech, bossy in areas long left to the sound discretion of the states, and in several instances very likely unconstitutional.”

Jessica Huseman covered voting rights and election administration for liberal-leaning Pro Publica. Writing at The Daily Beast, she explained how H.R. 1 would invite a train wreck for election administrators across the country. Huseman laments that H.R. 1 was “written with apparently no consultation with election administrators, and it shows.” It tries to force states “to rush gargantuan changes on deeply unrealistic time frames” and “comes packed with deadlines and requirements election administrators cannot possibly meet without throwing their systems into chaos.” Its “alarmingly prescriptive” provisions on voting systems “show remarkably little understanding of the problems” being addressed and demand changes from election administrators that “are literally impossible to implement.”

Under H.R. 1, any voter could sue over noncompliance, which is inevitable. The bill requires by next year (it gives two different dates in different parts of the bill) the adoption of a new type of voting machine that doesn’t yet exist, can’t be certified until next year or afterwards, and won’t be available in mass quantity until still later. It requires implementation within two years of register‐​at‐​the‐​DMV options that have taken years of debugging in states that have introduced them, as well as a register‐​by‐​phone option “that no state currently uses,” no vendor currently offers, “and that election officials are baffled by.”

Olson says H.R.1 would erode privacy and free speech by requiring “disclosure of the names of many persons who donate to organizations that engage in policy‐​oriented speech that falls far short of electioneering.” It “would create a new public fund to finance congressional campaigns. Good idea or bad, that’s not a voting rights issue.” Even when it comes to voting, it overreaches, he says:

  • Various provisions of the bill that do relate to voting procedure would require states to do things like adopt early in‐​person voting, liberally permit so‐​called ballot harvesting, and create independent redistricting commissions. Election Day would be made a public holiday. Whether good ideas or bad, these venture into areas of electoral reform that until recently were distinguished from voting rights as such, as well as being left to local option under our system of federalism. (Some are also very likely to be struck down as unconstitutional, whether because they repudiate the local control of elections envisaged in our constitutional design, because they “commandeer” state resources, or both.)

But seldom do liberal reporters recognize these pitfalls or trade-offs. Liberal media like CNN, the Washington Post, and the New York Times, just depict H.R. 1 as a “voting-rights bill.” All too often, reporters behave like “Democratic operatives with bylines,” notes law professor Glenn Reynolds.

Hans Bader

Hans Bader

Hans Bader practices law in Washington, D.C. After studying economics and history at the University of Virginia and law at Harvard, he practiced civil-rights, international-trade, and constitutional law. He also once worked in the Education Department. Hans writes for CNSNews.com and has appeared on C-SPAN’s “Washington Journal.” Contact him at [email protected]

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