Erwin Chemerinsky, a dean and distinguished professor of Law, and Raymond Pryke Professor of First Amendment Law, at the University of California, Irvine School of Law, published a Thursday editorial in The Hill that in essence calls Sen. Ted Cruz, R-Texas a liar. At issue is a proposed constitutional amendment offered by Sen. Mark Udall, D-CO that would permit Congress to regulate money spent on elections. Cruz contends that this is a direct assault on free speech. Chemerinsky not only disagrees but claims that Cruz knows that the amendment does no such thing.
The proposed amendment is a response to the Citizens United and McCutcheon cases that essentially declared limits on campaign contributions, monetary or “in kind,” to be unconstitutional. The Citizens United case concerned a film that was critical of Hillary Clinton. The group wanted to advertise the film and pay to have it aired during the 2008 Democratic primaries. The FEC found that plan to be a violation of the McCain-Feingold campaign finance law. The Supreme Court found that the FEC was violating Citizens United’s free speech rights.
Cruz’s argument, as expressed in a Wall Street Journal oped, contends that limits on campaign contributions, including “in kind,” constitutes a limit on free speech. The term “in kind” can be loosely interpreted to mean many things, including commercials, flyers, even posts on blogs or social media. The amendment specifically exempts the media from this restriction, but fails to state which people and organizations enjoy freedom of the press protections.
The argument over whether money is speech is an old one, with liberals contending that it is not and conservatives and libertarians contending that it is. Is freedom of speech restricted to allowing people to rant on street corners? Or does it also include spending money on ads and other media to advocate a point of view?
Chermerinsky clearly is of the former view. Cruz argues that the power to regulate spending on speech is the power to regulate speech. That Chermerinsky choose to not only attack Cruz’s argument but also his integrity is of some interest concerning where supporters of the Udall amendment are coming from.