By Rich Lowry
Tuesday, March 12, 2019
The same Democrats outraged by Donald Trump’s alleged
offenses against the First Amendment passed, as their first priority, a
speech-restricting bill opposed by the American Civil Liberties Union.
Trump shouldn’t call the media “the enemy of the people”
or inveigh against Jeff Bezos for owning the Washington Post, but Nancy Pelosi’s H.R. 1, which passed the House
last week, is the true affront to the Constitution.
The wide-ranging legislation purports to reform campaign
finance with a series of vague, sweeping measures that will act to chill speech
when they don’t actively regulate or squelch it. H.R. 1 is called the For the
People Act but would be more aptly titled the Be Careful What You Say, It Might
Be Illegal Act.
Progressives can’t abide the notion that people in this
country get together to spend money on advocacy outside the purview of the
government — in other words, freely promote their favored causes as befits a
free people living in a free country.
H.R. 1 cracks the whip. As the Institute for Free Speech
points out, the current campaign-finance rules limit expenditures that
expressly advocate for the election or defeat of a candidate, or refer to a
candidate in public advertising shortly before an election. The idea is to have
clear rules so groups can promote their views without fear of running afoul of
federal regulations.
H.R. 1 blows this regime up. It seeks to regulate any
speech at any time that “promotes or supports the candidate, or attacks or
opposes an opponent of the candidate,” a fuzzy standard that could catch up all
manner of nonelectoral messages (e.g., “Trump’s tariffs are a mistake,” or
“Support Trump’s wall”).
H.R. 1 also widens the definition of coordination between
a group and a candidate to encompass almost any communication. It’d still be
permissible to discuss a candidate’s position on an issue, so long as there is
no talk “regarding the candidate’s or committee’s campaign advertising,
message, strategy, policy, polling, allocation of resources, fundraising, or
other campaign activities.”
Even if a group doesn’t coordinate with a candidate under
this loose standard, it could still be deemed to have coordinated if it were
founded by someone who goes on to become a candidate; relies on the
professional services of someone who also did work for a candidate; or is run
by someone who had conversations about a campaign with the relative of a
candidate.
On top of all this, H.R. 1 goes after the privacy of
donors to advocacy organizations. It mandates the disclosure of the names and
addresses of donors giving more than $10,000 to groups that engage in
“campaign-related disbursements.” Given our toxic political environment, this
would potentially subject the donors to harassment and abuse, and they might
not even be aware of or support the communications in question.
Supporters of H.R. 1 say it is necessary to rein in super
PACs, the frightening-sounding organizations that aren’t as unregulated as
everyone believes (the Federal Election Commission gets reports of their
expenditures and contributions). But, as the Institute for Free Speech notes,
the bill affects a much broader array of “trade associations, unions, business
groups, and advocacy organizations, such as Planned Parenthood and the National
Right to Life Committee.”
Love them or hate them, these groups are part of the warp
and woof of American public life, and they shouldn’t have to think twice before
engaging in acts of persuasion that enrich and enliven our democracy, not
corrupt it.
The Supreme Court has long put an emphasis on bright
lines in its campaign-finance jurisprudence exactly to avoid a chilling effect
on advocacy. It has said that laws must be “both easily understood and
objectively determinable.” The campaign-finance provisions of H.R. 1 are
neither.
What H.R. 1 makes abundantly clear is that the foremost
threat to the First Amendment are the people who believe that there is
something untoward about unregulated political speech and seek to bring it
under control.
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