Nomination of Sylvia Mathews Burwell to Be Secretary of Health and Human Services

Floor Speech

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Mr. CORNYN. Mr. President, in the wake of some recent Supreme Court decisions touching on our system of campaign finance, there has arisen in the Senate, frankly, this bizarre notion that we are going to amend the Constitution to undo the Bill of Rights, and particularly the First Amendment and its protection of the freedom of speech.

Of course, the proponents don't describe it that way. To hear the majority leader, who testified before the Senate Judiciary Committee yesterday, he said: They are merely trying to keep what he called dark money out of American politics.

By giving Congress the ability to regulate political speech and the means by which that is paid for and disseminated, this amendment would invite all manner of partisan mischief and abuses and effectively dismantle one of the most fundamental liberties secured by our Constitution which makes America the envy of the world, and in many ways unique in that we protect freedom of speech without regard to the content of the speech and without regard to the identity of the speaker, whether they be rich, poor, or a member of the middle class. Whether that opinion is informed or not necessarily well-informed, we believe in the marketplace of ideas where the American people are the only judge as to what they believe the truth is. We don't try to stifle or squelch speakers, particularly in the political process.

As our good friend the Republican leader said yesterday:

If incumbent politicians were in charge of political speech, a majority could design the rules to benefit itself and diminish its opponents. And when roles reversed, you could expect a new majority to try to disadvantage the other half of the country. And on it would go.

So this power the majority leader has proposed in amending the Constitution so Congress could regulate political speech could be an instrument of incumbent protection where the party in power could use that as a weapon against the minority trying to persuade the country that they should be restored to the majority rather than linger as a minority.

Is this really the kind of system our colleagues who are proposing this constitutional amendment want? Well, you have to ask whether they have any realistic belief that this will actually become law. And of course it would have to pass both Houses of the Congress by a two-thirds vote, and it would have to be ratified by three-quarters of the States. I don't think it is an overstatement to say they have no chance of this becoming law.

Why in the world is such an outlandish proposal being made by somebody such as the distinguished majority leader of the Senate and other folks in his party? Well, it is no exaggeration to say this proposed amendment would undermine American democracy as we know it, so there has to be some other reason other than the substance of the amendment they are trying to get at.

Lest we forget the whole purpose of the First Amendment is to ensure that all political speech--as a matter of fact all speech, period--is protected from government interference, and that is why it is in the Bill of Rights, at the time our country was founded there was a serious debate about whether we needed an explicit Bill of Rights or whether the very structure of our government with its checks and balances and our shared power between the judicial, executive, and legislative branches would itself provide that protection. But the Federalists said, no, we are not going to settle for that. We want an explicit protection of those rights that are not derived from government but which precede government--which don't come from government but come from our Creator.

Under the logic used by the proponents, the government should change this provision in the Bill of Rights that has been the law of the land for more than 200 years and now start regulating how much money newspapers, magazines, and Web sites are allowed to spend on articles concerning politics and public policy. After all, when media outlets publish this information, they are using their financial advantage over ordinary citizens to be able to get their views out to the public. And, of course, they are trying to persuade citizens and voters and trying to affect political outcomes, both in terms of public policy choices and elections.

The majority leader, if he were on the floor, might say: Well, we have a provision in here that we will not grant Congress the power to abridge freedom of the press. If you could turn off and on the money by which the press disseminates its point of view, if you can regulate perhaps even to the point of zero on the part of political actors and their ability to disseminate their views in the public or influence voters before the election, this carveout is effectively meaningless.

It would most certainly grant Congress the power to abridge the free speech of individuals and groups as disparate as the American Civil Liberties Union, the National Rifle Association, and the Sierra Club, which obviously have different views but enjoy and are entitled to the same freedom to speak their views and persuade people to their point of view as much as anybody else. It would also grant Congress the power to abridge other freedoms in the First Amendment, such as freedom of assembly and freedom to petition government for the redress of grievances, and it would allow State governments to ride roughshod even over freedom of the press.

You have to wonder why in the world would intelligent, highly educated, experienced Senators--people who are knowledgeable about all of the matters I have talked about--propose such a wrongheaded idea and one they know will never become the law of the land?

Well, unfortunately, this is part of an effort to intimidate and stigmatize people from participating in the political process. We know the majority leader comes out to the floor and talks daily about the Koch brothers, whom he happens to disagree with, and he disagrees with their right and ability to participate in the political process and to affect elections. He doesn't talk about other political actors, such as organized labor, which has essentially been carved out of the limitations on political contributions and political spending. He doesn't talk about people such as Tom Steyer, a former hedge fund manager who says he will spend $100 million against anyone who supports the Keystone Pipeline or anyone who opposes his views on climate change.

This cherry-picking in terms of trying to intimidate people and to squelch political speech is pretty apparent. It becomes apparent because obviously the majority leader is very worried about the upcoming midterm election and what might happen when we see the pushback from voters in the Senate races all across the country over the last 5 years, and this great, huge growth in government and its intrusiveness in their lives.

Here is the bottom line: Free speech is free speech, period. To quote a recent Supreme Court decision:

There is no right more basic in our democracy than the right to participate in electing our political leaders.

As they said, there is nothing more basic.

As I mentioned a moment ago, thankfully the Founders were wise enough not only to give us the Bill of Rights and our Constitution but to make it very difficult to amend it in the first place, so we know the majority leader's amendment has no chance of actually passing. Yet its mere introduction, the fact that a major political party and a majority in the Senate apparently believes in shrinking the First Amendment in order to weaken their political opponents, should be a cause of broadspread concern in the country. People ought to ask the question: Why in the world would you propose to do something as draconian and as damaging as that?

Well, it is the kind of amendment we would expect to see not in the greatest deliberative body in the world, and certainly not in the Senate, but maybe some banana republic or some country that does not have our experience or our foundation in constitutional self-government. Therefore, it is not merely enough to reject this amendment and then quickly move on to something else. We need to send a clear, unambiguous message that the Bill of Rights is not up for debate. We need to send a clear, unambiguous message that our First Amendment freedoms represent the bedrock of American democracy, and we will not agree to undermine that, damage it, or otherwise impair it on our watch.

I yield the floor.

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