The Democrats’ Election-Reform Bill Is an Unconstitutional, Authoritarian Power Grab

National Review Online

Sunday, March 10, 2019

At some level, you have to give House Democrats some credit for ambition. They may have just sent to the Senate the most comprehensively unconstitutional bill in modern American history. It’s called the “For the People Act,” and it’s a legislative buffet of bad ideas.

The alleged purpose of the bill, H.R. 1, is to “expand Americans’ access to the ballot box, reduce the influence of big money in politics, and strengthen ethics rules for public servants.” In reality, the bill represents an extraordinary federal power grab. At every turn, it grants federal regulators more power. Time and again, it renders federal election law more complex — creating a chilling effect on political communication through sheer uncertainty and confusion.

The free-speech problems are so obvious that free-speech organizations on the left and right are united in opposition. Comprehensive analyses from the Institute for Free Speech and the American Civil Liberties Union are worth reading in their entirety and raise remarkably similar concerns.

At a time of extraordinary public harassment, boycotts, intimidating public shame campaigns, the act would expand financial-disclosure requirements, including in some circumstances requiring public disclosure of the names and addresses even of donors who did not know about or perhaps even support the political message of the organization they funded. Donors may give money, for example, to fund one aspect of an organization’s mission only to be involuntarily exposed as a “political donor” when the organization chooses — without the donor’s knowledge or consent — to mention a politician by name in a different context. As the ACLU points out, “it is unfair to hold donors responsible for every communication in which an organization engages.”

Moreover, in the effort to further limit “coordination” between candidates and political action committees, the bill sets forth language so broad that, as the ACLU explains, it affects communications that “merely refer to a candidate or an opponent to a candidate 120 days before an election or 60 days before a primary or a caucus.” The Institute for Free Speech’s Bradley Smith argues that, with such language, “the goal seems to be to limit discussion of candidates to the candidates and parties themselves, at the expense of the public at large.”

Compounding the problems, the bill revamps the Federal Election Commission, making practical partisan control a near-certainty. While no more than two members of one party could be appointed to the new, five-person commission, it would be easy to achieve ideological control by appointing a like-minded “independent” to break the logjam. As a result, two Democrats and an independent socialist could control the interpretation and enforcement of H.R. 1’s extraordinarily broad and vague provisions. Under current law, the FEC is supposed to have six commissioners, with no more than three of the same party. It takes a vote of four for the commission to act, so the commission can’t act without at least some degree of bipartisan consensus.

In addition to controlling political speech, the bill would transform the federal government into the sugar daddy of American politics by dramatically increasing federal funding of campaigns. Are Democrats truly worried about the influence of “big money” over politicians, or do they simply want to ensure that the government is the donor?

The bill would also strip from the states the ability to draw their own congressional districts (requiring instead that they be drawn by an independent commission) and the ability to engage in prudent, constitutionally appropriate measures to ensure the accuracy of their voter rolls. Moreover, it directly contradicts the text of the 14th Amendment, which grants states the ability to prohibit or restrict the voting rights of felons.

The bill also expands the definition of “lobbyist” far beyond the bounds of reason — to include even those individuals who provide “legislative, political, and strategic counseling services” to actual lobbyists, even if the person who provides “counseling services” never communicates with the relevant government officials. As the Heritage Foundation’s Hans von Spakovsky explained in his written testimony opposing H.R. 1, the language is broad enough that it could even encompass casual conversations at social gatherings.

But there’s a larger concern with the bill beyond the multiple constitutional problems with individual provisions. Taken together, it directly contradicts two foundational virtues of the American constitution: its protection of political speech and its respect for federalism. The “For the People Act” is a legislative megaphone amplifying the Democrats’ belief that political speech is somehow particularly suspect. Political speakers are particularly suspicious.

The Democrats seem to believe that political speech is just too dangerous to be unrestrained. It has to be micromanaged, regulated by technocrats until it is directed into its government-approved lanes. This is of course exactly what incumbent politicians tend to prefer. They want predictable debates, reliable funding streams, and (above all) power — including the power to punish their opponents.

Finally, federalism isn’t just valuable as the “laboratory of democracy” (though that is valuable), it also recognizes the reality that American states have different cultures and different priorities. Drawing legislative districts according to state priorities allows each state to shape its federal delegation the way the people of the state dictate, not according to Washington’s demands.

Throughout the Trump years, Democrats have raised multiple alarms over the alleged authoritarianism of the Trump administration, and while we have not agreed with the propriety of all the administration’s actions, nothing it has proposed or enacted is as alarming as H.R. 1. This bill is a frontal assault on the Constitution, and the nation should be grateful that the Republican-controlled Senate will almost certainly block it from becoming law.