Principle 2: Congress Should Robustly Embrace and Facilitate the People’s First Amendment Rights

by Kathy Goldschmidt on March 04, 2022
This is part of a series from our latest report, The Future of Citizen Engagement: Rebuilding the Democratic Dialogue. Over the next few weeks, check back for new posts outlining the principles and featuring accompanying resources, articles, and plans to support them.

Congress is designed to be more directly connected and beholden to the people than the other branches of our national government, a fact that is deeply embedded into our democratic culture, practice, and expectations. Congress is, therefore, the institution most responsible for ensuring that the People's First Amendment rights are vigorously facilitated in the public policy process.

In our 2021 report The Future of Citizen Engagement: Rebuilding the Democratic Dialogue, we propose ten principles for modernizing and improving the relationship between Congress and the People. All ten will require changes in the constituent engagement culture and practices in both Congress and the organizations that help facilitate grassroots advocacy. The second principle is: Congress should robustly embrace and facilitate the People's First Amendment rights.

The freedoms of assembly, speech, the press, and petition are all critically important to the relationship and communications between Congress and the People and between individual Senators and Representatives and their constituents. For example:

  • Freedom of Assembly. The right of the People to assemble peacefully has been exercised to advocate for change countless times since our founding in the form of public demonstration and protest. Also included in our freedom of assembly are the associations—both formal and informal—established to advance particular interests. These are often derogatorily described as "special interest groups," and many decry their influence in Congress. However, these professional associations, nonprofits, unions, coalitions, industry organizations, and ad hoc groups have always been essential to our practice of democracy and our engagement with Congress. They facilitate collective action around topics of mutual interests to their members and, as a result, amplify the specific needs of the participants. For decades—if not generations—they have been responsible for the bulk of advocacy, petitions, and constituent communications directed toward Congress.
  • Freedom of Speech. One of the best-known and frequently-exercised rights is that of free speech. Historically, free speech and the right to petition government for a redress of grievances were clearly delineated in Congress' processes and practices. Free speech applied to public speech, where speakers express and advocate for their views before their fellow Americans. The petition applied to requests or pleas to government, and were subject to different processes and expectations. In modern times, however, communications to and with Congress have generally been considered free speech, and they are afforded very broad latitude and few restrictions, as a result. Every month, Congress receives millions of messages from Americans expressing their opinion on legislation. Custom dictates that Members be open to receiving the messages, but they decide for themselves what they do with them and which messages get their attention. Government cannot censor free speech, but it does not have to respond in any way. The right to free speech has also been extended to lobbying activities—including grassroots advocacy—and spending on elections. This right guarantees that anyone can say almost anything without fear of government retribution or censorship, which is how most attempts to place limits on lobbying activities or money in politics have been struck down.
  • Freedom of the Press. Like free speech, freedom of the press is a well-enshrined and deeply-understood First Amendment right. The press has always played a vital role in disseminating civic information and ensuring Senators and Representatives were accountable to their constituents. Historically, newspapers and their journalists were understood to be "the press," and from the founding of the nation, they provided means for Senators and Representatives to inform constituents of their activities, and—through letters to the editor and editorials—for constituents to inform legislators of their opinions. Reporters would cover the salient topics for their local audiences and depended on access to legislators and to Congress to provide the civic information their readers required. However, advances in technology—radio, telephones, television, and the Internet—have substantively changed the definition and role of the press over time and in ways that have not been clearly defined or litigated. In fact, since the dawn of the Internet many local newspapers have closed, and many states are now without even one reporter dedicated to covering Congress. As a result, civic information is more likely to be covered at a national level than filtered through the perspectives and lenses of a local community. In whatever form and format it takes, however, the press remains vital to our democracy, and freedom of the press continues to be a regular subject of national conversation.
  • Freedom to Petition Government. The right to petition government for a redress of grievances is the least understood of our First Amendment rights, and it is now practiced much differently by Congress than at the founding of the nation. Unlike our current methods for communicating with Congress, which are directed only to the specific Senators and Representative of the person writing, petitions used to be directed to, and addressed by, the full House of Representatives or Senate. In the House—where most petitions were directed—any Member could introduce a petition from anyone and anyone could sign onto a petition, regardless of where they lived or who represented them. This meant that the House and Senate regularly addressed issues raised by people with minority viewpoints, including people who were not eligible to vote. This gave a voice to those who were not otherwise represented in the majoritarian public policy process. Once the House or Senate accepted a petition, there was also a culture and expectation for due process, as with a court filing. Any petition taken up by the House or Senate received consideration and a response, which led to regular debate on any number of generally unpopular or contentious issues, including abolition of slavery, interstate commerce, enforcement of treaties, and women's suffrage. Today, there is a vestigial version of the historic petition, but there is no longer a culture of consideration and response. Now the right to petition has been equated with free speech rather than due process, and it is practiced more along majoritarian lines than to give minority voices a venue for consideration.
As we modernize Member-constituent engagement, it is imperative that we more deeply explore, define, and distinguish the relationships among our First Amendment rights as they pertain to our interactions with Congress. While our practices for communicating with Congress have changed dramatically since the founding of the nation, the rights enshrined in the First Amendment delineate the essential freedoms that undergird our practice of democracy and our engagement with government.

Principle into Practice:
  • Congress should embrace organized advocacy facilitated by outside groups, recognizing they are integral to the freedoms of assembly, speech, and petition.
  • Congress should explore how the right to petition government can be modernized and better facilitated.
  • Members of Congress should advocate for more comprehensive civic engagement education in middle and high schools in their district/state so Americans understand not only how government works, but also their roles and responsibilities for participating in it.
  • While advocacy groups, nonprofits, associations, and companies with interests before the government should have access to their representatives in Congress, they also have a responsibility to educate their supporters and set expectations and limits as to what Congress can and cannot do.
CMF's report The Future of Citizen Engagement: Rebuilding the Democratic Dialogue explores the current challenges to engagement and trust between Senators and Representatives and their constituents; proposes 10 principles for rebuilding that fundamental democratic relationship; and describes innovative practices in federal, state, local, and international venues that Congress could look to for modernizing the democratic dialogue.

Additional Resources
 
citizen engagement, congressional operations