Erwin Chemerinsky, not mincing any words, has accused Sen. Ted Cruz of lying about the quixotic attempt to amend the First Amendment.
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 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.
And how are people supposed to convey these messages? Do books, magazines, commercials, internet ads, etc. broadcast gratis? The government doesn’t need to explicitly regulate the content of the speech. It can simply prevent those groups from spending money.
Also, mentioned nowhere in Chemerinsky’s editorial is that Cruz quoted verbatim from an ACLU report that made the exact same points.
As I noted in a piece lambasting the proposed amendment:
During that Senate hearing, Senator Ted Cruz excoriated the supporters of this idea, noting that he had “more faith in the Bill of Rights” than in “any elected official.” But free speech is not a left-right issue, and even those who support campaign finance reform should be troubled by the manner in which this amendment would operate. As the ACLU wrote in a letter to the Senate, the amendment would “lead directly to government censorship of political speech and result in a host of unintended consequences that would undermine the goals the amendment has been introduced to advance—namely encouraging vigorous political dissent and providing voice to the voiceless, which we, of course, support.” You know something is out of orbit in our constitutional constellation when Ted Cruz joins with the the ACLU against forty-four Democrats.
Chemerinsky also failed to mention the fact that the proposed amendment has an egregious drafting error that only protects the freedom of the press from federal, and not state regulation.
To make matters even worse, the proposed amendment is marred by an egregious drafting error. Section 3 reads, “Nothing in this article shall be construed to grant Congress the power to abridge the freedom of the press.” While Congress does not have the power to abridge the freedom of the press, the states do! The Empire State could now prohibit The New York Times from endorsing candidates in an election. Did any of the 44 Senators who supported this bill, or their staff, notice this mistake pointed out by the ACLU? Such sloppy draftsmanship from those willing to tinker with our constitutional liberties reveals a disheartening callousness for our Bill of Rights. Or maybe it reflects their indifference to the fact that this amendment will go nowhere. Either scenario makes clear that this Amendment should be promptly jettisoned to the asheap of constitutional history.
This slapdash and reckless effort to amend the Constitution should go nowhere.