The debate over whether to repeal part of the First Amendment continues as supporters mischaracterize the proposed Political Equality Amendment. Senator Ted Cruz wrote an op-ed responding to Irvine School of Law Dean Erwin Chemerinsky’s claim that Cruz and Senate Republicans are overstating the consequences of the proposal.
In his own column, Chemerinsky said, “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. The amendment would do no more than allow the government to regulate spending in election campaigns.” He bases his analysis on this version: “Congress and the States may regulate and set reasonable limits on the raising and spending of money by candidates and others to influence elections.”
However, as Senator Cruz points out, “[Chemerinsky] makes one simple mistake. That language is not in the Udall amendment. Instead, the language he quotes is from a substitute amendment filed by Senator Dick Durbin (D-Ill.) in response to the overwhelming criticism of the Udall amendment.” Chemerinsky is relying on an incorrect draft of the proposed amendment for his analysis.
Cruz argues that the “operative language” of the actual proposed version, “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.”
To Cruz, the consequences are obvious, “individual citizens who spend even a dollar to speak out on politics . . . 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.”
To be clear, Senator Durbin’s “fix” is insufficient in Cruz’s eyes. “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.” Such reasonableness requirement would subject nonprofit corporations like the ACLU, Sierra Club, and the AARP to regulation.
The broad language of the amendment, as proposed, presents myriad constitutional consequences. Senator Cruz’s remarks provide solid analysis of these consequences.