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The Truth about Democrats' Efforts to Repeal the First Amendment

From The Hill:

Erwin Chemerinsky is a passionate liberal and a distinguished scholar and dean. We have been opposing counsel before the Supreme Court, and I consider him a friend.

Sadly, last week he wrote a column in the Hill that called me a liar and attacked my effort to defend the First Amendment from Democrats who are seeking to regulate political speech.

It is unfortunate that public debate has descended to the point that such personal insults are commonplace.

It is particularly unfortunate because Dean Chemerinsky’s attack is predicated on an objective mistake, a simple error that routine fact-chcking should have caught.

On June 18, 2013, Sen. Tom Udall (D-N.M.) introduced a proposed constitutional amendment that, if adopted, would effectively repeal the free speech protections of the First Amendment. The operative language of that amendment would give Congress the blanket authority
to regulate “the raising and spending of money and in-kind equivalents with respect to federal elections.”

That language had no limitations. Individual citizens who spend even a dollar to speak out on politics—by writing a book, making a movie, launching a website, running a radio or television ad, or putting up a yard sign—could be regulated, prohibited, or even criminalized. Because the language also encompassed “in-kind equivalents,” citizens or groups who worked to organize and mobilize voters could likewise be regulated with no limits.

The amendment goes on to say “nothing in this article shall be construed to grant Congress the power to abridge the freedom of the press”—raising the obvious inference that the freedom of speech is very much abridged. The New York Times is protected, but you and I are not.

Remarkably, forty-two Democrats have joined Sen. Udall in attempting to repeal the free speech protections of the First Amendment. And I have worked hard to explain the breathtaking consequences of their proposed amendment.

For this, Dean Chemerinsky says I am a liar.

But, the ACLU has made the very same point. It says the amendment would “severely limit the First Amendment and lead directly to Government censorship of political speech," including allowing Congress to ban books, like Hillary Clinton's new book "Hard Choices."

Floyd Abrams, perhaps the leading First Amendment litigator in the country (and an outspoken Democrat), has likewise observed the amendment "would limit speech that is at the heart of our First Amendment.”

The ACLU was not lying, Floyd Abrams was not lying, and neither was I.

To advance his claim that I lied about the Udall amendment, Dean Chemerinsky quotes the text of the amendment as giving Congress and the states the authority to “regulate and set reasonable limits on the raising and spending of money by candidates and others to influence elections.”

He makes one simple mistake. That language is not in the Udall amendment.

Instead, the language he quotes is from a substitute amendment filed by Sen. Dick Durbin (D-Ill.) in response to the overwhelming criticism of the Udall amendment.

Durbin’s replacement is somewhat better. It eliminated Udall’s broad language giving Congress the power to regulate “in-kind equivalents” and it added the qualifier “reasonable.”

In the new amendment, “reasonable” carries a lot of work. It is now the standard response of Democrats to any argument that Congress might have too much power to regulate the citizens’ speech—that it wouldn’t be reasonable. I trust the Bill of Rights more than politicians, but, under the Durbin amendment, our free speech would be made subject to the "reasonableness" of members of Congress and the hope that courts will protect us.

Durbin's amendment also gives Congress even broader authority (not limited by reasonableness) to regulate the speech of all corporations, including nonprofit corporations like the ACLU, the Sierra Club, Planned Parenthood, the NAACP, La Raza, and the AARP.

To recap, Sen. Udall introduces an amendment giving Congress total authority over political speech, with no limitations; I point that out publicly; in response, Durbin changes the language of the amendment to put in some limitations (“reasonableness”); and then Dean Chemerinsky quotes the new Durbin language to say that I lied when I said the prior Udall language had no limitations.

I assume this was an honest mistake. Perhaps a research assistant put the Durbin language in front of the dean and said “see, there are limitations, so Cruz is lying.”

But, if a student made the same mistake in Dean Chemerinsky’s constitutional law class—quoting the wrong language of the wrong amendment to make a false claim about a different amendment—that student wouldn’t get a very good grade.