by Ted Cruz
The story of this obscure dispute began when the Sackett family wanted to build their dream home. They bought a vacant lot in Idaho. Some distance from their house site—beyond several other lots with buildings on them—was a lake.
After finding a drainage problem on their lot, the Sacketts filled part of their property with dirt and rocks and began to build their home. That’s when they received a letter from the Environmental Protection Agency informing them that they had filled in statutorily protected “wetland.” Without affording the Sacketts any opportunity to explain why their property was in no way a “wetland,” the letter ordered them to stop construction, remove the fill, turn over a host of records, and allow the EPA access to the property. If the Sacketts so much as hesitated, they were subject to a $75,000 fine for every day they delayed.
The EPA’s worst abuse of power was not its designation of the Sacketts’ backyard as a wetland or even its threat of crippling fines. Unfortunately, that’s business as usual for the modern EPA. But the case made it to the Supreme Court because the Obama administration went even further. It claimed the Sacketts should also be prohibited from taking the EPA to court to defend their property rights. All nine justices rejected President Obama’s vision of faceless bureaucrats being able to take away Americans’ constitutional right to property without so much as a judicial hearing. The Court declared—once again unanimously—that the Obama administration had acted lawlessly. As Justice Alito said, “This kind of thing can’t happen in the United States.”
It is astonishing that President Obama’s conception of federal power is so vast that four liberal justices on the Supreme Court have joined their colleagues in unanimously ruling against the president more than 20 times in five and a half years—double his predecessor’s rate of unanimous defeats and 25 percent greater than President Clinton’s.
But President Obama has not been content merely to stretch the boundaries of executive power according to the Constitution—he has also tried to fundamentally change the document. I refer here to the Democrats’ effort to repeal the First Amendment.
Surely, that is hyperbole, you may be thinking. I assure you, it is not.
In the entire time I have been in the Senate, nothing has disturbed me more than the Democrats’ efforts to remove the free speech protections found in the Bill of Rights, which provides in the First Amendment that “Congress shall make no law . . . abridging the freedom of speech.”
Senate Democrats introduced an amendment to the Constitution that would have amended the Bill of Rights to give Congress broad authority to regulate political speech. Sadly, tragically, astonishingly, every single Democrat in the Senate voted to repeal the free speech provisions of the First Amendment.
Under the terms of the revised First Amendment proposed by the Democrats, Congress would have the authority to “regulate and set reasonable limits on the raising and spending of money by candidates and others to influence elections.”10
Those “others” included every one of us. For example, if a little old lady spent five dollars on cardboard and a stick to make a yard sign for her front yard, Congress would have the power under this amendment to regulate her speech.
But that’s not all. A second proposed constitutional amendment would also single out “corporations” and give Congress special power to “prohibit” them “from spending money to influence elections.” Now, “corporations” doesn’t just include IBM or Exxon Mobil. The NRA is a corporation. So is the Sierra Club, Planned Parenthood, and the Brady Center to Prevent Gun Violence. Just about every citizens group, on the left or right, is organized as a corporation. Under the text of this amendment, Congress could “prohibit” any of them from speaking about politics.
Every presidential election season, Saturday Night Live lampoons each party’s candidates. Some of that ridicule sticks. There is little doubt that President Ford’s image was tarnished by Chevy Chase’s wickedly funny impersonation, and that Governor Sarah Palin’s was similarly affected by Tina Fey’s unforgettable characterization of her. But if Congress can “prohibit” corporations “from spending money to influence elections,” then Congress can “prohibit” NBC—a corporation—from airing Saturday Night Live.
To be sure, the amendment exempted the news media, specially carving out the “freedom of the press.” Thus the New York Times would have the ability to speak about politics, but your and my speech would be subject to regulation by Congress. And SNL isn’t deemed news media, so they fall out of the exemption.
At the end of a hearing of the Judiciary Committee’s Subcommittee on the Constitution and Human Rights (on which I then served as the ranking member) on the repeal of the First Amendment, I asked the chairman, Democrat Dick Durbin of Illinois, three simple questions. Do you believe Congress should have the constitutional authority to ban movies? Do you believe Congress should have the constitutional authority to ban books? Do you believe Congress should have the constitutional authority to ban the NAACP (a corporation) from speaking about government?
Senator Durbin hastily gaveled the hearing closed and made his way out of the hearing room without answering those questions. But as we continued the debate weeks later before the full committee, it became obvious that the Democrats’ answer to all three questions was yes. President Obama and the Senate Democrats supported amending the Bill of Rights to give Congress the power to ban movies, books, and political speech by political advocacy organizations.
In fact, the Obama administration has already tried to censor a movie, and it has already asserted that it should have the power to ban books. When a conservative group made a movie about Hillary Clinton (Hillary: The Movie), the Obama administration tried to fine the moviemaker for daring to make a movie critical of Clinton. The group’s name was Citizens United.
Citizens United sued on the grounds that the group was exercising its right to free speech under the First Amendment, and the case went to the Supreme Court. During its defense of censoring Citizens United’s movie, the Obama administration was asked at an oral argument if it could also prohibit a company from using its general treasury funds to publish a book that discusses the American political system for five hundred pages and then, at the end, says “Vote for X.” President Obama’s lawyer said, flat out, “Yes.”11
These radical claims for the authority to ban books and movies led me to dub the amendment’s proponents the “Fahrenheit 451 Democrats,” after Ray Bradbury’s dystopian classic about book-burning government power run amok. And their positions were so radical that they lost one of their usual allies—the ACLU. To its credit, the ACLU blasted the proposed constitutional amendment: “Even proponents of the amendment have acknowledged that this authority could extend to books, television shows or movies, such as Hillary Clinton’s Hard Choices or a show like the West Wing, which depicted a heroic Democratic presidential administration during the crucial election years of 2000 and 2004.”12
For the months that Democrats were trying to push their politically driven revision of the Constitution it ought to have been the lead story on the six o’clock news every single night.
Fifty-six Democratic senators proposed repealing the free-speech protections of the First Amendment. The media were silent, and yet the American people deserve to know that a majority of their senators were so afraid of political opposition that they wanted to empower the federal government to police who can speak, and when, and for how long—and on what subjects. That was a radical break from the vision of our Founders.
On May 14, 2013, the inspector general of the Treasury Department published a report that described how the Internal Revenue Service had improperly targeted tea party groups, pro-Israel groups, and pro-life groups based on their conservative political beliefs. In other words, serious allegations were raised that the IRS had been transformed into a political ally of the Obama reelection campaign and the Democratic National Committee.
The day the news became public, the president declared that he was “outrag
ed,” he was “angry,” and the American people had “a right to be angry” as well.
And yet, in the many months since May 2013, not a single person has been indicted. Many of the victims have not even been interviewed. And Lois Lerner, the head of the rogue office that illegally targeted conservative groups, has gone before the House of Representatives and twice pleaded the Fifth Amendment.
In multiple hearings before the Senate Judiciary Committee, Attorney General Eric Holder obfuscated and stonewalled on the IRS. Under his tenure, the IRS investigation was assigned to a partisan Democrat—a major donor who has given more than six thousand dollars to President Obama and the Democrats. Unsurprisingly, the investigation has gone nowhere.
The fourth estate, despite its overwhelming support for the president and his policies, has also been the target of harassment. Two years ago, without bothering even to reveal its reasons, the administration secretly collected two months of phone records from the staff of the Associated Press, which called the action “a massive and unprecedented intrusion into how news organizations gather news.”13 That same year, they targeted James Rosen, a reporter at Fox News, by labeling him a possible “co-conspirator” in a leak investigation. To quote the New York Times editorial board—not something I expect to make a habit of—the Obama administration, with its abuse of Rosen, “moved beyond protecting government secrets to threatening fundamental freedoms of the press to gather news.”14
In our history presidents of both parties have at times abused their power and exceeded their constitutional authority. But in the past, members of the president’s own party—in Congress, in his cabinet, and among independent groups—have shown the courage and principle to stand up to him.
What is unprecedented is the remarkable silence of Democrats in the face of Barack Obama’s lawlessness and massive expansion of federal power. The sad fact is that for the Democrats in Washington—and for far too many in my own party as well—politics comes before principle. Electoral considerations come before country. And no offense perpetrated by a party’s leader is too outrageous for them to defend.
When President Bush exceeded his constitutional authority and attempted to order the state courts to obey the World Court, I was proud to go before the U.S. Supreme Court on behalf of Texas and defend the Constitution. The Court struck down his unconstitutional order, 6–3. Where are the Democrats willing to do the same to stop their party’s abuse of power?
An executive’s defiance of the rule of law ought to trouble every American—if only because Barack Obama will not be president forever. Even if you agree with Obama’s policies, if this president has the power to ignore the law, then so do his successors—including successors from the opposing party.
This is not what our Founders hoped for. This is not the vision for our country that millions of Americans share. And it does not have to be this way. The genius of the Constitution is that it protects our country from executive branch excesses through the system of checks and balances. The legislative and judicial branches can impose limits on the executive’s assertion of power—provided we as public officials have the political will to do it. With the proper leadership, we can restore the purpose and vision behind the American experiment.
* In keeping with the clubby pattern of the Senate, Secretary Clinton was confirmed by a broad bipartisan vote of 94–2.
* Ultimately Senator Paul decided not to vote for the Russia sanction legislation, but I appreciated his help in strengthening it.
CHAPTER 11
Reigniting the Promise of America
A single vote can topple a government, even among the most mighty on earth. That thought crossed more than one mind on March 28, 1979, as the tallies were being read in the House of Commons. By a vote of 311 to 310, the Labour government of Prime Minister Jim Callaghan had fallen. It had lost the confidence of a bare majority, and would be forced to call for new elections. The outcome was the first dissolution of a British government on a vote of “no confidence” in more than five decades.
Among the jubilant members of Parliament that day was the Leader of the Opposition, a forthright (some might say bracing) Conservative whose staunch and uncompromising attacks on communism had led her to be dubbed “the Iron Lady” in the Soviet press. It was a nickname that stuck.
For her part, Margaret Thatcher tried to look inscrutable. But it was hard to mask her pleasure. She was poised to become the next prime minister in the upcoming general election, and the first woman ever to hold the venerable post once occupied by Winston Churchill.
“Hooray!” boomed a voice from the back of the room. The voice belonged to her husband, Denis, whose out-of-order outburst met a quick rebuke from the sergeants at arms (and quite properly so, his wife would later point out).1
But Denis shared the excitement of so many conservatives across the nation. A few years earlier, their leader had been on the verge of political extinction. As education minister in a Tory government, she had pushed for cuts to the school lunch program, which included free milk for schoolchildren. For her it was a principled position—we all must tighten our belts—but it led to a furious outcry, even among her fellow Tories. Critics dubbed her “Margaret Thatcher, milk snatcher.” From that painful experience, Thatcher learned a valuable lesson: “I had incurred the maximum of political odium for the minimum of political benefit.” From then on, she knew when to compromise and when to hold firm. But even as she learned the art of compromise, her conservative principles grew ever stronger. She was studying economics at a think tank founded by a follower of Friedrich Hayek. She had become the public face of opposition to Keynesian economics and the growth of the welfare state.
Thatcher freely shared her disdain for her country’s policies, put forward by both major parties, which she believed had led the once-mighty empire down its current road to ruin. The litany was sobering—the nation’s industrial supremacy was eroding; union bosses were forming what she called “cartels that restricted competition and reduced efficiency”; coffers and energy were exhausted by involvement in two protracted wars; and the British were suffering from economic and financial anemia. Government was large and unwieldy. In short, Great Britain was a nation “that had had the stuffing knocked out of it.”2
The Tories—the British equivalent of the Republican Party—were part of the problem, Thatcher maintained, and had been for decades. As she later put it, “Almost every post-war Tory victory had been won on slogans such as ‘Britain Strong and Free’ or ‘Set the People Free.’ But in the fine print of policy, and especially in government, the Tory Party merely pitched camp in the long march to the left. It never seriously tried to reverse it.”3 Even her own tenure in government, under Conservative prime minister Ted Heath, had proven a stunning disappointment—a government, a supposedly conservative government, which through price controls and efforts to give coercive power to labor unions had, in her judgment, “proposed and almost implemented the most radical form of socialism ever contemplated by an elected British government.”
To Thatcher, the key to her victory was obvious, fundamental, and simple. “First you win the argument, then you win the vote.” She knew the socialist foundations of the Labour Party would expose themselves eventually. But she would not simply wait for the other party to collapse under its own failings; the damage to Britain in the meantime might be irreparable. Instead, she resolved to make the case for the Conservatives under the banner of ideas and principles—less government, lower taxes, more economic and personal freedom. She would tell the truth—even if that meant offending members of her own party who’d grown comfortable during their time in government.
That night, after a small family celebration, Margaret Thatcher thought of the challenging campaign ahead, the possibility of failure—not just of the Conservative Party, but of the country she loved. But she was confident she had made her case to the people; the die had been cast. And she had a peaceful night’s rest.*
Barack Obama achieved a remarkabl
e thing in 2012: He was reelected with 51 percent of the popular vote—a higher margin than any Republican presidential candidate has received in twenty-six years. Republicans were for the most part stunned. Our candidate, Mitt Romney, was smart, experienced, a good man—and anointed by the party establishment. But despite the weaknesses in the Obama record, Romney could not make his case. In the words of Lady Thatcher, we didn’t “win the argument.” Heck, oftentimes we didn’t even make the argument.
If nothing else, President Obama’s second term has served as a wake-up call that there is a powerful argument to make. Electing, or reelecting, a weak, liberal president does profound damage to a nation. In 1980, we avoided that fate when the Republican standard-bearer declared it was “time to check and reverse the growth of government.” He argued without qualification that “lower tax rates mean greater freedom, and whenever we lower the tax rates, our entire nation is better off.” He spoke of the pitfalls inherent in “rationing scarcity rather than creating plenty,” of “entrepreneurs” as “forgotten heroes,” and of the truth that “free enterprise has done more to reduce poverty than all the government programs dreamed up by Democrats.”
In 1980, that Republican leader won 91 percent of the electoral college. In 1984, when it was “morning again in America,” he won 58 percent of the popular vote and almost all of the electoral college, carrying 49 states. And in 1989, when he retired from public life, he had led not only an administration, but a revolution—the Reagan Revolution.
There will never be another Reagan Revolution, because there will never be another Ronald Reagan. But there can again be Morning in America.
I am convinced that we can reignite the miracle of this promised land of opportunity that God placed between two great oceans—a place where no man is compelled to bow to another, as monarchs and nobles required of generations of peasants and slaves; a place where pilgrims of every era can determine their own destinies, as my immigrant father did; and a place where no agent of any government can take your property, narrow your dreams, or stand between you and your destiny.
