by Ted Cruz
Of course, whatever his personal, subjective intentions may have been (perhaps just to grandstand politically), he had not one word of substantive response to the fact that the explicit terms of the amendment he was supporting—which would be engrafted into the Bill of Rights—would have given Congress blanket power to “prohibit [corporations, including NBC] from spending money to influence elections.”
Regulating political speech—books, movies, comedy, satire—is very different from what Democrats and the media typically portray Citizens United as being all about: for-profit, greedy corporations trying to “buy” elections. In truth, polling over the past decade shows that, overall, a very small percentage of corporations of any form, type, or size directly engage in politics. Polls have shown that over 90 percent of companies surveyed do not have a super PAC and do not otherwise directly engage in politics at an institutional level.
And a substantial majority of the big-money donors are on the left, not the right. According to the data maintained by OpenSecrets.org, of the top twenty organizations who spent money on the 2016 election, fourteen of them gave almost exclusively to Democrats, and three more split their money roughly evenly between the parties. Only three out of the top twenty groups who spent money on the 2016 election gave primarily to Republicans. Of the top ten super PAC donors, only two were Republican, and in 2016 the top twenty super PAC donors contributed a total of $422 million to Democrats and $189 million to Republicans.
To its credit, the American Civil Liberties Union, a liberal group that has sadly gotten less principled and more partisan in recent years, managed to publicly oppose Senate Democrats’ attempt to repeal the First Amendment of the Bill of Rights. It wrote that Senate Democrats’ proposed constitutional amendment would “severely limit the First Amendment, 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.”
Think about that for a second. The Democrats were seeking the power to ban books. Conjure for a moment Ray Bradbury’s classic dystopian novel Fahrenheit 451, named for the temperature at which book paper ignites. In it, a despotic government rounds up and burns the books with which it disagrees. How can it be that today one of our two major political parties is on record in favor of precisely that unfettered government power? As we debated the issue, I dubbed the amendment’s proponents the “Fahrenheit 451 Democrats.” Notably, not a single Democrat presented any substantive argument whatsoever as to why their amendment wouldn’t allow government-mandated book burning. They simply charged ahead with partisan, lock-step unity.
In the course of the mark-up before the full Senate Judiciary Committee, I introduced an amendment to the Democrats’ proposed constitutional amendment. It deleted every word of their proposed amendment and replaced it with the following: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” That was and is, of course, the text, word-for-word, of the First Amendment to the Constitution.
We then voted on my proposed amendment, and every single Democrat on the Judiciary Committee proceeded to vote against the verbatim text of the First Amendment. But the matter wasn’t done then. Next, it came to a vote on the Senate floor. At the time, I was a fairly new senator, and I made an impassioned argument to my Democratic colleagues that, even if we disagreed on many matters of policy, we should come together when it came to protecting free speech.
There was a time when lions of the left routinely defended free speech. Indeed, one of the lawyers who argued the Citizens United case, on the side of defending the right of citizens to criticize elected officials, was Floyd Abrams, the famed left-wing lawyer who had championed dozens of free speech cases for many decades. A lifelong liberal, Abrams showed principle and consistency when he testified vigorously against the Democrats’ proposed constitutional amendment. But as we have seen on so many other issues, this is not your father’s Democratic Party.
One of the Court’s landmark free speech cases was Cohen v. California, where, at the height of the Vietnam War, the State of California had tried to prosecute Paul Robert Cohen for disturbing the peace because he wore a jacket that read, “F### the draft.” Personally, you might not agree with that sentiment; you might even find it obscene. But the Supreme Court nonetheless rightly reversed the conviction; as Justice John Marshall Harlan II wrote, “one man’s vulgarity is another’s lyric.”
A robust commitment to free speech is not a means to merely protect favored, or popular, speech. It is not a means to elevate and single out speech that might be deemed “reasonable.” It is not a means to prioritize only the speech that is deemed socially acceptable and inoffensive by an elite ruling class. Rather, a society protects free speech under the rule of law precisely to protect unreasonable speech. It protects free speech under the rule of law precisely to protect offensive speech.
Log on to Twitter on any given day; there are countless speakers on the political left who attack, vilify, and insult me. And, although I’d prefer that they exercise civility, I’ll defend vigorously their constitutional right to say whatever nasty, false, dehumanizing attack they send my way. That’s the price of public life. As the English writer Evelyn Beatrice Hall wrote, summarizing the beliefs of the great French Enlightenment thinker Voltaire: “I disapprove of what you say, but I will defend to the death your right to say it.”
Free speech is not just an instrumental good. It is not just an expedient. It is not just a means toward an end. It is an intrinsic good—an end unto itself. For millennia, political theorists and philosophers have recognized that the dialectic, the iterative societal dialogue that has the pursuit of truth as its desired destination, is necessarily dependent upon free speech and the free airing of diverse viewpoints. As John Stuart Mill wrote in On Liberty,
[T]he peculiar evil of silencing the expression of an opinion is, that it is robbing the human race; posterity as well as the existing generation; those who dissent from the opinion, still more than those who hold it. If the opinion is right, they are deprived of the opportunity of exchanging error for truth: if wrong, they lose, what is almost as great a benefit, the clearer perception and livelier impression of truth, produced by its collision with error.
Put another way, the best cure for bad speech is more speech. Over time, truth will prevail in the marketplace of ideas. And rather than silencing false or dissenting views, respond with truth and win the argument.
For that reason, the text of the First Amendment provides, “Congress shall make no law… abridging the freedom of speech.” That is an unambiguous textual command. It is, or at least ought to be, clear as day. “Congress shall make no law” means, obviously, that “no law” that abridges the freedom of speech may rightfully be sanctioned by that august deliberative body. That’s why, to have the power to ban political speech with which they disagreed, Democrats had to amend and repeal the First Amendment.
When the Senate had previously considered Democratic attempts to amend the free speech protections of the First Amendment, and to expand the government’s authority to regulate political speech, such liberal warriors as Senator Ted Kennedy had vigorously opposed them. In 1997, many years before Citizens United was decided, when Democrats had tried to pass a campaign-finance constitutional amendment, Kennedy thundered, “In the entire history of the Constitution, we have never amended the Bill of Rights, and now is no time to start. It would be wrong to carve an exception in the First Amendment.”
At the same time Senator Kennedy issued that warning, Democratic Senator Russ Feingold, who would go on to co-sponsor the very campaign finance law the Court ultimately enjoined in Citizens United, said, “The Constitution of this country was not a rough draft. We must stop treating it as such.” And so Feingold opposed the Democrats�
�� constitutional amendment. Later, in 2001, when Senate Democrats again attempted a constitutional amendment similar to the ones that they proposed in 1997 and in 2014, Senator Feingold replied, “I find nothing more sacred and treasured in our nation’s history than the First Amendment. I want to leave the First Amendment undisturbed.”
I pleaded with my Democratic colleagues. Surely one of you, I asked, must agree with Ted Kennedy. Or Russ Feingold. Or Floyd Abrams. Or the ACLU. Surely one of you, I asked, must agree that the free speech provisions of the First Amendment deserve to be protected. I spoke passionately on the issue—an issue that embodies the American experiment and the Liberty at its heart:
Mr. President, this proposal before the Senate is, bar none, the most radical proposal that has been considered by the United States Senate in the time I have served. If this proposal were to pass, its effects would be breathtaking. It would be the most massive intrusion on civil liberties and expansion of federal government power in modern times.
Later on in that speech, I explained that the purpose of the First Amendment is not merely to protect the speech that politicians deem reasonable, socially permissible, or otherwise acceptable. On the contrary, our First Amendment exists to protect the most unpopular and unfavored speech among us:
The First Amendment is not about reasonable speech. The First Amendment was enacted to protect unreasonable speech. I, for one, certainly don’t want our speech limited to that speech that elected politicians in Washington think is reasonable.
There was a time when this body thought the Alien and Sedition Acts prohibiting criticizing the government were reasonable. There is a reason the Constitution doesn’t say, “let’s trust politicians to determine what speech is reasonable and what isn’t.” And I would note that the Supreme Court has long made clear that the First Amendment is all about unreasonable speech. For example, when the Nazis wanted to march in Skokie, Illinois. Nazi speech is the paradigmatic example of unreasonable speech. It is hateful, bigoted, ignorant speech. And the Supreme Court said the Nazis have a constitutional right to march down the street in Skokie, Illinois, with their hateful, bigoted, ignorant speech. Now, every one of us then has a moral obligation to condemn it as hateful and bigoted and ignorant, but the First Amendment is all about saying government doesn’t get to decide what you say is reasonable and what you say is not.
As I concluded my speech on the Senate floor, I made sure everyone knew that this was not about politics at all. This was about doing the right thing. This was about making sure we didn’t erase one of the most foundational provisions in the entire Bill of Rights:
Madam President, I assure you if it were my party proposing this egregious amendment, I would be standing on the floor of this Senate giving the very same speech, trying to hold my party to account. Because, you know, at the end of the day, when we take our oath of office, it’s not to the Democratic Party or the Republican Party. It is to represent the citizens of our state—in my case, 26 million Texans—to fight for their rights, and to defend and uphold the Constitution of the United States. There is nothing the United States has done in the just under two years that I’ve been in this body that I find more disturbing, more dangerous, than the fact that 49 Democrats would put their name to a proposal to repeal the First Amendment.
In 1997, when Democrats had tried to pass a constitutional amendment restricting political speech, thankfully, eleven Democrats voted no (Bumpers, Durbin, Feingold, Kennedy, Kerrey, Kohl, Leahy, Moseley-Braun, Moynihan, Rockefeller, and Torricelli). In 2001, when Democrats again tried to pass a constitutional amendment repealing the political speech protections of the First Amendment, a different collection of eleven Democrats voted no (Corzine, Edwards, Feingold, Johnson of South Dakota, Kennedy, Kohl, Leahy, Nelson of Florida, Nelson of Nebraska, Torricelli, and Wellstone).
Sadly, this last time that Democrats had the majority, in 2014, when it came to a vote on the Senate floor, every single Senate Democrat—100 percent of them—voted to repeal the free speech provisions of the First Amendment. Each and every one of them should be embarrassed and ashamed that they did so.
* * *
On Constitution Day of that year, the National Constitution Center in Philadelphia, Pennsylvania, invited me to come debate this proposed attempt to amend the Constitution. I readily accepted. They invited Dick Durbin to come debate the other side. Senator Durbin declined. They invited Chuck Schumer. Senator Schumer declined.
At the end of the day, the National Constitution Center could not find even a single elected Democrat willing to come argue the other side of the argument. They wanted to exercise brute power, engage in partisan posturing, without actually having to defend their proposals on the merits. So I decided to proceed alone. The National Constitution Center assembled a gathering of some 600 to 700 people in Independence Hall and, for over an hour, I proceeded to, in effect, debate myself. I endeavored, as much as I could, to at least lay out the arguments that Democratic senators had made in favor of their proposed amendment. And then I laid out the counterarguments. (I’ll confess, I may have been more vigorous in the latter than the former.)
When it comes to campaign finance reform, a great many people who seek to do good in the world say that there is too much money in politics and, accordingly, we should prevent the spending of money on elections. They argue that elections would be better (or more pure or more truthful or more accountable) if we simply banned citizen groups from spending money on political speech. I don’t doubt that many of them are sincere, but doing so would have precisely the opposite effect on our democracy.
In any given election, there are typically three major categories of speakers—three categories of those who contribute to the discourse surrounding an election. There are, of course, incumbent politicians and the candidates who may be challenging them. There are the press. And there are individual citizens.
Campaign finance reforms, inevitably, when drafted and filed in Congress, are drafted by incumbent politicians. And, almost without exception, these so-called campaign finance reforms serve to protect those same incumbent politicians. It is in the interest—at least the narrow electoral interest—of every incumbent politician to make it as difficult as possible for anyone else to criticize them. The press, likewise, is complicit in these efforts to silence the third category of speakers: individual citizens and citizens gathered collectively through various organizations.
Every day of the year, the press—whether ABC, CBS, NBC, the New York Times, the Washington Post, Fox News, or CNN—engages in spending millions of dollars to influence elections and to praise or criticize politicians. If citizens are silenced, the press will have even more of a monopoly on political speech.
Likewise, incumbent politicians have massive structural advantages in elections. In big states, like my home state of Texas, today with 29 million people, it is absurdly difficult and expensive to communicate a message that is heard by even a small percentage of the voters. Incumbent politicians have vast advantages: widespread name identification, organizations and structures, lobbyists and special interests who will fund their campaigns, and an army of bundlers who can raise money for any given campaign. A new challenger typically lacks access to any of those resources. If incumbent politicians were to be successful in prohibiting the expenditure of money on elections, it would mean that, as a practical matter, incumbents could almost never be beaten. That is, quite frankly, un-American.
I’m an incumbent now. But I didn’t start off that way. And I share the overwhelming frustration the American people have with career politicians of both parties who are captured by Washington special interests and who don’t do what they said they would do. If I could push a button and throw out of office every incumbent politician in D.C., myself included, I would happily push that button. In the meantime, I’m passionately opposed to incumbent-protection schemes, of which campaign finance reform proposals are the biggest example.
In 2019, media observers were shocked when I re
tweeted Alexandria Ocasio-Cortez and enthusiastically agreed with her suggestion to ban former members of Congress from becoming lobbyists. Although she didn’t know it at the time, AOC was agreeing with me; in 2016, while campaigning for president, I had already advocated a permanent lifetime ban on former members of Congress ever becoming lobbyists.
When I first ran for Senate in Texas in 2012, I saw firsthand the challenges of taking on a powerful incumbent. At the time, I was an upstart challenger taking on an incumbent statewide officeholder with vast personal wealth. My opponent, having been in statewide office for over a decade, had universal name ID (a very expensive thing to build). Because of the power of his office, he had practically every lobbyist in the state behind him. And he was personally worth over $200 million, which he poured into the race.
The day I entered the race, I was at 2 percent in the polls… and the margin of error was 3 percent. Those were real numbers from the first poll we did. I was pretty excited not to be starting at zero, until Heidi wryly observed, “Technically, couldn’t you be at negative 1 percent?”
When I was elected to the Senate in 2012, I had never before been elected to any other office. Indeed, as I have joked, albeit accurately, the last thing I had been elected to before that was student council.
Nonetheless, we managed to raise some $14 million from a whopping 43,160 unique donors. That was enough to overcome the 3-to-1 spending differential we faced. And we ended up winning what the Washington Post later characterized as the single biggest upset of 2012 and “a true grassroots victory against very long odds.”
That also included $1.2 million that I personally put into the campaign, which represented all of our liquid net worth. That’s a lot of money, most of which we had saved from my few years in private practice at the law firm before running. Some people assume that, because I went to Princeton and Harvard, I must have family money and come from privilege. That’s not the case. I was a scholarship kid. My dad was a Cuban immigrant; my mom was the first in her family to go to college. Nobody in my family had ever gone to an Ivy League school, and when I went to college my parents had just lost their small business and declared bankruptcy. We lost our home, and I worked two jobs and took out about $100,000 in loans (which I finally paid off twelve years ago) to make it through college and law school.