"I go further, and affirm that bills of rights, in the sense and in the extent in which they are contended for, are not only unnecessary in the proposed constitution, but would even be dangerous. They would contain various exceptions to powers which are not granted; and on this very account, would afford a colourable pretext to claim more than were granted. For why declare that things shall not be done which there is no power to do? Why for instance, should it be said, that the liberty of the press shall not be restrained, when no power is given by which restrictions may be imposed? I will not contend that such a provision would confer a regulating power; but it is evident that it would furnish, to men disposed to usurp, a plausible pretence for claiming that power. They might urge with a semblance of reason, that the constitution ought not to be charged with the absurdity of providing against the abuse of an authority, which was not given, and that the provision against restraining the liberty of the press afforded a clear implication, that power to prescribe proper regulations concerning it, was intended to be vested in the national government. This may serve as a specimen of the numerous handles which would be given to the doctrine of constructive powers, by the indulgence of an injudicious zeal for the bills of rights." - The Federalist Papers No. 84 Alexander Hamilton.
I include the quote above, not to oppose the Bill of Rights, but as proof of the power not given to the national government, and which the Supreme Court of the United States agrees. The Supreme Court's recent decision in Citizens United v. the FEC to overturn parts of McCain-Feingold has been described as an affirmation of the First Amendment by some, and as a decision that favors big business over the individual by others. But those that see it as a decision favoring big business over the individual fail to understand the Constitution and the First Amendment. When the First Amendment was proposed as part of the Bill of Rights prior to the ratification of the Constitution, there was opposition to it. Alexander Hamilton wrote specifically about why he opposed bills for rights and used the First Amendment as an example. His quote above details the power of the national government with respect to speech and freedom of the press. The national government has no power. Hamilton's fear was that if an Amendment was passed protecting freedom of speech and the press, others would infer that the national government must have power to regulate free speech and the press, when it does not. Hamilton's own position justifies the decision by the Supreme Court.
By allowing the national government to prohibit businesses from speaking out on political issues, the national government is preventing both speech that is legitimate and truthful and speech that goes against the public interest. The national government's position was essentially that there is a greater interest to prohibit speech that can harm the political process than there is to allow speech that is helpful to the political process. In essence the national government places itself in the position of deciding which speech is good and which speech is bad. That is not a power the Constitution gives the government and it would be wrong to give government that power.
As to why it would be wrong to give government that power, let us consider an example. The Democrats and the President in particular have been saying that greedy banks that gave mortgages to people who couldn't afford them and traded those mortgages as commodities caused the housing crisis in this country. The banks were, until this ruling, prohibited from taking out ads pointing out the the crisis was not in fact their fault, but the fault of politicians in Washington, D.C. who for thirty years have passed laws forcing banks to make loans to low income people. They cannot point out that for thirty years, Congress has encouraged home ownership among the lower class and people with credit scores too low to qualify for a conventional mortgage. They are not permitted to point out that interest rates over the past ten years have been among the lowest in the nation's history. They cannot point out that they would not have been able to deny mortgages to people if they wanted to, because to do so could result in action against the bank by the government. So you have the Democrats and the President accusing the actions of the banks, but the banks cannot respond to those accusations. I that right? Is that constitutional? What is the result of this? The result is people hearing and believing the spin by the Democrats and the President without being presented with the facts from the group that is being attacked.
By allowing the government to decide who can speak and who can't, the government actually gives the advantage to the side that can speak to whatever it wants without the risk of being attacked. This can lead to one side twisting the truth, because they know the other side can't respond. That is why the national government does not have the authority to take freedom of speech from one group. To do so would threaten not just freedom of one group, but also our freedom as a whole.
Extremus
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