by Ted Cruz
But Mr. President, Governor Northam didn’t end there. He wasn’t content simply with saying that abortion should be allowed even in the midst of birth. He went further. He said on that radio interview, and I quote, “The infant would be delivered. The infant would be kept comfortable. The infant would be resuscitated if that’s what the mother and the family desired, and then a discussion would ensue between the physicians and the mother.”
Mr. President, so nobody is lost on what Governor Northam was saying, he was describing something that has euphemistically been called “post-birth abortion.” He was describing his view of the right way to approach delivering a child, which is a child that is delivered, that is outside the womb, that is breathing and crying and living, that is an infant—and Governor Northam calmly, with virtually no emotion whatsoever, described comforting that infant and then having a conversation about whether to deny that child the necessary care to live, or simply to callously let a newborn infant die.
On February 25, 2020, the Born Alive Abortion Survivors Protection Act came to a vote on the Senate floor. The Democrats filibustered the bill, and it tragically failed by a vote of 56–41. Every Republican voted yes, and all but three Democrats voted no. Sixty votes would have been needed to overcome the filibuster.
This is a radical Democratic party.
And, as for the Supreme Court, it still hangs in the balance. Roe and Casey are very much at stake—together, we need to restore a culture of life that protects the sanctity and dignity of every human life. But also at stake are countless important legal protections, including parental consent laws, clinic safety regulations, and bans on partial-birth abortion.
Each, potentially, survives or falls by a single vote. Four justices are already prepared to overturn them all, to allow unlimited abortions in every circumstance. They just need one more. The dramatic shift between Stenberg and Gonzales—both 5–4, decided opposite ways, just a few years apart, on nearly identical statutes—powerfully illustrates just what it means to be one vote away.
CHAPTER 6 FREE SPEECH AND CITIZENS UNITED V. FEDERAL ELECTION COMMISSION
Do you have the right to criticize elected officials? Do you have the right to disagree with candidates running for president of the United States? Does the Constitution protect your right to say, “Hillary is a crook,” or “Donald Trump is a bully,” or “Joe Biden is soft on China”? Some might think those are simple and straightforward questions—even obvious—but today that fundamental liberty is very much in jeopardy.
Those were precisely the questions at the heart of Citizens United v. Federal Election Commission, which was decided in 2010 by a narrow vote of 5–4. Citizens United is a nonprofit organization that made a movie critical of Hillary Clinton. Citizens United disagreed with Hillary’s policies and had serious concerns about her ethical and legal failings—all of which were reflected in the movie they produced entitled, Hillary: The Movie.
However, because Citizens United sought to run advertisements for its movie in the period immediately preceding an election, the Federal Election Commission asserted the power to fine Citizens United under the McCain–Feingold campaign finance legislation, passed in 2002. Citizens United filed a lawsuit challenging the constitutionality of the government’s asserted power to regulate core political speech. And that case proceeded to the Supreme Court. Ultimately, the Supreme Court struck down the provisions of McCain-Feingold that purported to restrict Citizens United’s ability to publish and advertise its movie criticizing Hillary Clinton.
Few decisions in the past decade have engendered more political animosity on the left and confusion or outright misrepresentation from the press. You may have heard Citizens United being described as a case concerning whether corporations are people, or a case concerning whether money is speech. It has become commonplace for Democratic politicians to routinely answer “no” to both questions, and to characterize Citizens United as a decision that allowed giant corporations to “buy” political elections.
That can be effective as political rhetoric. It has the simple failing of not being true. On the question of whether corporations are people, the answer is that of course they are not. But, as a legal matter, they are an assembly of people. They are multiple people gathered together for a common purpose. And as a constitutional matter, there should be no serious dispute that American citizens, either individually or gathered together in the corporate form, have the right to free speech under the First Amendment.
And, as it so happens, the vast majority of speakers affected by Citizens United are not the big, bad, wealthy corporations portrayed by Democratic politicians. Citizens United itself was, and is, a small nonprofit corporation. It’s not Exxon Mobil. It’s not Citigroup. It’s a conservative nonprofit that sought to portray its perspective on Hillary Clinton.
If anyone advocates, as almost all Democratic politicians do, that corporations have no free speech rights, pause to reflect that the Sierra Club is a corporation. Greenpeace is a corporation. Planned Parenthood is a corporation. NBC is a corporation. The New York Times is a corporation. Simon and Schuster, like all major book publishers, is a corporation. The NAACP is also a corporation. Is there any plausible argument that the aforementioned corporations have zero right under the First Amendment of the Constitution to advocate for their political views? The answer is, of course, no, but that doesn’t stop politicians and four justices of the Supreme Court from concluding otherwise.
As for the second straw man frequently used to criticize the Citizens United decision (the proposition that money is not speech) that too is demonstrably false. The Framers of our Constitution did not believe that the only way you or I could speak was to stand atop a soapbox in the public square and yell loud enough for those around us to hear.
In our modern times, and even in the time of the American Founding, to speak effectively to any significant number of people almost invariably involves the expenditure of money. That’s why candidates run TV ads, radio ads, Internet ads, and social media ads. That’s why book publishers spend money to publish books. That’s why the New York Times spends millions of dollars to pay reporters and run printing presses and purchase paper and ink to distribute its newspapers across New York City and across the world.
Imagine, for example, that the government passed a law saying no newspaper could spend any money to print newspapers. Or, if you wanted to target it, a law that says Fox News—or MSNBC, depending on your partisan affiliation—could not spend even a dollar to buy satellite time to broadcast their shows. Would anyone conceivably say, “Money is not speech, so that law is ok”?
Even in the days of the Framers, public speakers would routinely spend money to print pamphlets and other materials to circulate and communicate a message. Indeed, the Federalist Papers, the arguments of Alexander Hamilton, James Madison, and John Jay in support of the newly drafted but not yet ratified Constitution, were themselves drafted under the anonymous pseudonym “Publius,” published as newspaper editorials, and then printed and circulated across New York and what would become the thirteen original states of the United States of America. If the proposition that free speech does not protect the expenditure of money were correct and spending money were restricted, then the Federalist Papers could at best have been whispered person to person but would not have been effective in communicating much of anything.
Likewise, at the time of the American Founding, it was readily understood that political speech was the very core of the Constitution’s prohibition against Congress’s “abridging the freedom of speech.” Our Founding Fathers were deeply familiar with the great pamphleteer, Thomas Paine, and his seminal work Common Sense. Paine’s essay, which advocated for America’s independence from the British Crown, was tremendously influential at the time. It was widely distributed—printed, at considerable expense—and read aloud at pubs, taverns, town squares, and civic gatherings. It helped to usher in the American Revolution itself. And it was the quintessential example, the very parad
igm, of political speech.
When it comes to mischaracterizing the decision in Citizens United, one of the most egregious examples was at the 2010 State of the Union Address, when President Barack Obama described the Citizens United decision, decided the week before the speech, as “revers[ing] a century of case law” and “open[ing] up the floodgates for special interests—including foreign corporations—to spend without limit in our elections.” The characterization was so demonstrably false, and laughably so, that Justice Samuel Alito, typically a quiet and reserved judge, could not resist mouthing the words, “not true.” The following year, in response, Justices Alito, Scalia, and Thomas all decided to skip the State of the Union Address.
Citizens United has become a bogeyman of the left. Barack Obama vowed to repeal Citizens United. Hillary Clinton vowed to repeal Citizens United. Bernie Sanders vowed to repeal Citizens United. And Joe Biden has vowed to repeal Citizens United—or, more precisely, to appoint justices who will do it for him.
On the question of free speech, today’s Democratic Party has become truly radicalized. On June 18, 2013, fifteen Senate Democrats first introduced a constitutional amendment that purported to overrule Citizens United. In fact, it would have gone much further, repealing the free speech protections of the First Amendment altogether. The first version of the proposed constitutional amendment gave Congress plenary authority—a legal term meaning blanket, or total, authority—to regulate any expenditure of funds by any American to influence an election.
At the time, Illinois Senator Dick Durbin was the chairman of the Senate Judiciary Committee’s Subcommittee on the Constitution, and I was the ranking Republican member on the Constitution Subcommittee (today, with a Republican majority, I am the chairman of the Constitution Subcommittee). Senator Durbin sought to pass this constitutional amendment, and I led the argument against it. This first version of the constitutional amendment was written so broadly that—literally—if a little old lady were to go to Home Depot and spend five dollars to buy a poster board and construct a yard sign on which she handwrote the words “Vote for Donald Trump” or “Vote for Joe Biden,” then Congress would have had the authority to make that simple action a criminal offense punishable by jail time.
Under the Democrats’ proposed constitutional amendment, Congress would be able to prohibit the NRA from distributing voter guides to let citizens know politicians’ voting records on the Second Amendment. Under the Democrats’ proposed constitutional amendment, Congress would be able to prohibit the Sierra Club from running political ads criticizing politicians for their environmental policies. Under the Democrats’ proposed constitutional amendment, Congress would be able to penalize pro-life and pro-choice groups alike for spending money to advocate for their views on abortion. Under the Democrats’ proposed constitutional amendment, Congress would be able to prohibit labor unions from organizing workers to go door-to-door urging voters to turn out. Under the Democrats’ proposed constitutional amendment, Congress would be able to criminalize pastors who might print a message in their church bulletins encouraging their parishioners to vote.
Revealingly, the Democrats’ proposed constitutional amendment also included an express provision stating, “Nothing in this article shall be construed to grant Congress the power to abridge the freedom of the press.” What this means, in plain English, is that while Senate Democrats sought to empower Congress to restrict individual citizens’ political speech rights, they did not want to apply that same treatment to giant media corporations like CNN and the New York Times.
I made these arguments vigorously in the debate that ensued in the Constitution Subcommittee, and the position became so untenable that Democrats retreated and introduced a revised amendment. This time, their proposed constitutional amendment no longer applied to individuals—so the little old lady with her five-dollar yard sign was no longer swept in; instead, the terms of the new proposed amendment applied to any and all expenditures designed to influence an election made by any corporation (except for favored media corporations).
At the Constitution Subcommittee mark-up on this proposed amendment, a radical rewriting of the free speech protections contained in the First Amendment, I posed three simple questions. First, should the federal government be able to ban movies? Second, should the federal government be able to ban books? And third, should the federal government be able to ban the NAACP from speaking on matters of politics?
To all three of the questions, I gave a resounding “hell no.” But under the terms of the Democrats’ proposed constitutional amendments, the government would have the power to do all three.
When it came to banning movies, that was not even a hypothetical. Citizens United, you will recall, was a conservative nonprofit corporation that had made a movie critical of Hillary Clinton. And Senate Democrats now wanted to give the federal government the constitutional authority to punish anyone for criticizing Hillary Clinton or any other political candidate.
As for the question of books, that was, in fact, a hypothetical posed to the Obama Justice Department during the Citizens United oral argument at the Supreme Court. Justice Alito asked Malcolm Stewart, the deputy solicitor general of the United States at the time, whether “the government’s position is that the First Amendment allows the banning of a book if it’s published by a corporation.” In essence, Justice Alito wanted to know whether it was the legal position of the Obama Justice Department that the federal government has, or ought to have, the authority to fine a bookseller for publishing a book that was critical of a political candidate.
The fact that this was even a live question during a Supreme Court oral argument ought itself to be deeply troubling. The Obama Justice Department, remarkably, answered in the affirmative. As Deputy Solicitor General Stewart soon thereafter explained to Chief Justice John Roberts in the same line of questioning, it was the Obama Justice Department’s legal position that the government “could prohibit the publication” of such a book by “using… corporate treasury funds.”
It’s not just Citizens United, of course, that is a corporation—Paramount Pictures, Sony Studios, every major movie maker in America and, likely in the world, is a corporation. And under the Democrats’ proposed constitutional amendment, the federal government could regulate and punish if movies ever criticized politicians. Simon and Schuster, as it so happened, was the book publisher of Hillary Clinton’s book that had just come out as we were debating this amendment. I pointed out that, under the Democrats’ proposed constitutional amendment, the federal government could fine or perhaps even criminally prosecute Simon and Schuster for publishing the book if, in even one passage of the book, it either criticized or advocated for any federal candidate in any federal election.
And as for the NAACP, the NAACP is itself a corporation. It is a corporation that was formed to fight against bigotry and racial injustice. And when it comes to the proposition that government power might be used to attack the NAACP—to silence the NAACP, to persecute the NAACP—there are decades of history that show such government power has actively been used for precisely that objective. Indeed, elected politicians in Jim Crow states (virtually 100 percent of them elected Democrats) regularly used government power to persecute the NAACP. And the Supreme Court, in the landmark and unanimously decided 1958 case of NAACP v. Alabama ruled that the state government (under Democratic governor Big Jim Folsom) could not force the NAACP to hand over the names of its donors because those individuals would be unduly subject to government persecution.
Another example I pointed to was Saturday Night Live. For five decades, SNL has witheringly parodied politicians from both sides of the aisle. Chevy Chase tumbling down the stairs as Gerald Ford. Phil Hartman as a doddering (but secret mastermind) Ronald Reagan. Dana Carvey brilliantly as both George H. W. Bush (“Na ga do it!”) and Ross Perot (“Giant sucking sound!”). Darrell Hammond as a lascivious Bill Clinton arguing with John Goodman as Moses over what is and isn’t prohibited by the Ten Commandments. Will Fe
rrell as George W. Bush sharing his campaign “strategery.” Kate McKinnon as a dishonest, power-hungry Hillary Clinton. Larry David embodying a grumpy, germophobic Bernie Sanders.
On the latter, I jokingly told Bernie on the elevator in the Capitol that “Larry David does a better Bernie than you do!” Characteristically, Bernie simply harrumphed.
Over the years, SNL’s portrayals have had tangible political impact. Chevy Chase’s bumbling caused many Americans to think of Ford as a klutz, even though—as an All-American college football player at Michigan—he likely was the best athlete ever to occupy the Oval Office. Tina Fey’s uncanny Sarah Palin resulted in many Americans to this day believing that Palin actually said “I can see Russia from my house!” (it was Fey, and not Palin who said that).
I’ve grown up on SNL’s portrayals. I haven’t always liked them (especially when I was the brunt of them). But I believe they have a First Amendment right to produce whatever comedy they like, even if it’s unfair, vicious, or partisan. (The four-year weekly screed against Trump has gotten consistently less funny and more than a little tiresome.) However, under the Democrats’ proposed constitutional amendment, the federal government could punish NBC for airing political parodies. (Notably, NBC, which produces SNL, is separate from NBC News, which would be exempted under the Democrats’ news media carve-out.)
At the time, it so happened that one of my colleagues on the Judiciary Committee was Al Franken, who had previously been a writer and actor for SNL. At the mark-up, I asked him if “Congress should have the constitutional authority to prohibit Saturday Night Live from making fun of politicians.” He replied he didn’t “intend to do that.”