During a speech to a conservative crowd in Iowa this month, Republican presidential candidate Ted Cruz leveled a heavy charge against his colleagues across the aisle in the U.S. Senate. Democrats, he said, attempted to eliminate Americans’ right to free speech with a proposed constitutional amendment last fall.
"The Democrats in the Senate last year introduced a constitutional amendment to repeal the free speech protections of the First Amendment," Cruz told the audience at the Rising Tide Summit in Cedar Rapids.
Striking one of America’s most cherished and fundamental rights would certainly represent a controversial and historic change to the U.S. Constitution. But is that what Senate Democrats actually attempted to do?
Cruz was referring to Senate Joint Resolution 19, a proposed amendment regarding campaign finance that Democrats pursued in the months leading up to the 2014 midterm elections.
The measure failed to clear a procedural hurdle in September 2014 and faced a long road to ratification even if it had advanced. As a constitutional amendment, it would’ve had to pass with two-thirds majorities in the House and Senate and then win approval from three-fourths of state legislatures across the country.
The amendment
The text of the proposed amendment itself is pretty short and relatively straightforward. Here it is:
SECTION 1.To advance democratic self-government and political equality, and to protect the integrity of government and the electoral process, Congress and the States may regulate and set reasonable limits on the raising and spending of money by candidates and others to influence elections.
SECTION 2.Congress and the States shall have power to implement and enforce this article by appropriate legislation, and may distinguish between natural persons and corporations or other artificial entities created by law, including by prohibiting such entities from spending money to influence elections.
SECTION 3. Nothing in this article shall be construed to grant Congress or the States the power to abridge the freedom of the press.
Supporters say the measure is meant to overturn Citizens United v. Federal Election Commission and McCutcheon v. Federal Election Commission, a pair of Supreme Court decisions that have sharply weakened existing federal campaign finance laws.
It would do this by explicitly allowing Congress and the states to regulate and limit campaign fundraising and spending and to distinguish between "natural persons" and legal entities like corporations when regulating campaign spending. The text of the amendment makes no reference to freedom of speech or the First Amendment.
So how does it represent an attack on free speech?
The Cruz campaign referred us to a July 2014 op-ed Cruz wrote in the Washington Times. In it, the senator argues that political speech published or distributed by a corporation -- like an editorial from the New York Times or a skit on NBC's "Saturday Night Live" -- could be limited or banned by an act of Congress if the amendment were ratified.
U.S. Sen. Chuck Grassley, R-Iowa, offered a similar critique as the measure was being debated last September.
"The proposed amendment would restrict the most important speech the First Amendment protects, core political speech," Politico quoted Grassley saying in a Sept. 11, 2014, story. "It’s hard to imagine what would be more radical than the Congress passing a constitutional amendment to overturn a dozen Supreme Court decisions that have protected individual rights. Free speech would be dramatically curtailed."
But what do the experts say?
We checked in with a range of constitutional law scholars — including Cruz’s old con-law prof at Harvard — who offered a range of views and interpretations. But while there is some scholarly disagreement on whether the proposed amendment threatens free speech, none of those surveyed shared Cruz’s assertion that it would amount to outright repeal of free speech rights.