Members Only What Ted Cruz Gets Wrong About the First Amendment

Chuck Schumer represents New York in the U.S. Senate, and Ted Deutch represents Florida’s 21st District in the U.S. House of Representatives.

Texas Sen. Ted Cruz is shrewdly aware that Americans of every political persuasion are disgusted by big money in politics. He knows that hundreds of elected officials representing millions of people and 16 states have already endorsed a constitutional amendment to overturn Citizens United and related court decisions. And because he knows that defending the ability of corporations and a few billionaires to spend millions upon millions of dollars influencing elections is no winning position, he has taken to framing these efforts as plots to repeal the First Amendment.

The constitutional amendment that was reported out of the Senate Judiciary Committee last week will not, as Sen. Cruz claims, allow legislators to ban books or silence political opponents. But Sen. Cruz is trying to replace logic with hyperbole, saying that if you’re for this amendment, you’re against the First Amendment. His overheated rhetoric is an attempt to ignore an important truth in the history of our Constitution: We have always had balancing tests for every amendment. No amendment is absolute.


Sen. Cruz’s argument at a Judiciary hearing that any restriction on speech will cause an inexorable slide into censorship and tyranny defies the constitutional tradition of balancing the right to free speech with other important ideals like safety, privacy and democratic equality. The first balancing test is safety: Does Sen. Cruz really believe that everyone should be allowed to falsely cry “fire” in a crowded theater? Another is privacy: Libel laws protect against the use of speech to defame or slander without evidence. Anti-child pornography laws are an eminently justifiable regulation on the First Amendment for both safety and privacy reasons. Does Sen. Cruz oppose those? A third balancing test for the First Amendment should be a political system that has an equality of speech, which is why campaign spending limits are so important.

The constitutional amendment we propose will not infringe on citizens’ First Amendment rights; rather, it will restore the constitutional legitimacy to laws that set reasonable limits on spending in our elections. If anything, such an amendment should be seen as a bulwark for the First Amendment, which seeks balance among the cacophony of voices that exist in a free society. If Sen. Cruz believes so strongly in free speech, he should be concerned about billionaires from both ends of the political spectrum drowning out the voices of average Americans. Because it is not with the same dearness that we hold the right to get up on a soapbox and make a speech, or to write for a brochure or a newspaper, as we do to put the 11,427th negative ad on the air or to make sure that all the ad space is bought so your opponent can’t get on the air. With billions of dollars cascading into the system and distorting our politics, this false equivalency — likening the free speech of an individual to the campaign spending of a multibillion-dollar corporation — is dangerous and insulting to the American voter.

Indeed, Americans’ free speech rights flourished throughout the 20th century alongside numerous laws aimed at shielding government from the influence of well-funded special interests. Sen. Cruz must know that there was no book burning, no voter intimidation or disenfranchisement caused by these campaign finance restrictions in the period before Citizens United. These laws simply tried to protect the voices of average citizens from being shoved to the margins by the overwhelming power of moneyed interests to broadcast their message, which is stronger than ever. And now Citizens United has opened the floodgates to billions of dollars coming into the system undisclosed, unregulated and unanswered. Today, in terms of the ability to influence officeholders, the scales are tilted heavily in favor of corporations over voters, and wealthy individuals over middle-class families.

Giving corporations and a few hundred individuals — whether it’s Sheldon Adelson or George Soros — the right to buy unlimited influence in our elections undermines our entire system of elected representation and self-government and could force elected officials to spend more time courting donors and avoiding corporate attack ads than listening to the needs of their constituents.

It is clear that, throughout history, the application of the First Amendment has always required a balancing test, and there is no more important balance to be achieved than the noble goal of making sure our democracy works in an equal and fair way. That is what our amendment would do — it would restore some semblance of the principle of one person, one vote, and help us move toward the level of equality that the Founding Fathers sought in our political system.