Ted Cruz should be ashamed

Reasonable people can disagree on whether it would be good to amend the Constitution to overcome the Supreme Court’s decision in Citizens United v. Federal Election Commission, but Sen. Ted Cruz’s (R-Texas) false claims about the proposed amendment have no place in an informed debate. In a series of speeches and writings, Cruz has lied about what the amendment would do. Surely we can and must expect more from our elected officials.

The occasion for Cruz’s wrath is a proposed constitutional amendment concerning campaign finance that is now being considered in the Senate Judiciary Committee. The amendment’s purpose is to overturn the Supreme Court’s recent decisions that have limited the ability of Congress and state governments to regulate campaign spending.  

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In Citizens United v. Federal Election Commission, in 2010, the Court, 5-4, declared unconstitutional a provision of federal law and held that corporations have the right to spend unlimited amounts of money in independent expenditures in election campaigns. This year, in McCutcheon v. Federal Election Commission, again by a 5-4 margin, the Court held unconstitutional another provision of federal law that regulated the total amount that a person could contribute to candidates or political parties in a two-year period. As Justice Breyer lamented in his dissent, these cases “eviscerate” federal campaign finance law.

The proposed constitutional amendment seeks to restore the power of Congress and the states to enact laws of the sort that the Court declared unconstitutional in these cases.  These laws existed without problems for many years until the Supreme Court declared them unconstitutional. In fact, seven years before Citizens United, the Supreme Court upheld the very provision that it invalidated in that case.

The proposed constitutional amendment, in its key provision, simply would say: “To advance democratic self-government and political equality, and to protect the integrity of government and the electoral process, Congress and the States may regulate and set reasonable limits on the raising and spending of money by candidates and others to influence elections.” Another provision would make clear that the government can limit campaign spending by corporations.

It is impossible to reconcile this language with Cruz’s claims about it.  In a statement to the Senate Judiciary Committee, Cruz declared:  “This amendment here today, if adopted, would repeal the free speech protections of the First Amendment. . . .  This amendment, if adopted, would give Congress absolute authority to regulate the political speech of every single American, with no limitations whatsoever.”  

Similarly, in an op-ed in the Wall Street Journal, Cruz said, the amendment “gives Congress power to regulate—and ban—speech by everybody.” In remarks at the Family Research Council, Cruz declared:  “What it [the proposed amendment] says is that politicians in Washington have unlimited constitutional authority to muzzle each and every one of you if you’re saying things that government finds inconvenient.”

The amendment does nothing of the sort.  It gives no authority to the government to ban or limit anyone’s speech.   It provides the government no power to “muzzle” messages the government doesn’t like.  It does not change in any way the long-standing First Amendment principle that the government cannot restrict speech based on the content of the message or the views expressed. The amendment would do no more than allow the government to regulate spending in election campaigns.

Cruz’s repeat statements are more than just political hyperbole. They are false assertions intended to scare people into opposing the proposed constitutional amendment.

In a statement before a subcommittee of the Senate Judiciary Committee, Cruz said, “Any politician who put his or her name to an amendment taking away the free speech rights of every American, in my view, should be embarrassed.” But it is Cruz who should be embarrassed by his false assertions. Ted Cruz is a lawyer who had a very distinguished career in government and private practice. I have debated him on several occasions and know that he is a person of great intelligence. He knows exactly what the proposed amendment would do and yet has chosen to vilify it by misrepresenting it.

Whether it is desirable to try and amend the Constitution to allow campaign finance regulations is the question to be debated. In this, and all debates, we should expect and demand honesty from our elected officials. Cruz, in his statements about the proposed campaign finance amendment, is far below the most minimal standards of honesty.

Chemerinsky is dean and distinguished professor of Law, and Raymond Pryke Professor of First Amendment Law, at the University of California, Irvine School of Law.

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