By Alex Baiocco
Saturday, February 27, 2021
‘We the people. Those words changed everything. Power
rested in the people, not the government. Freedom to think, to speak, to act,
to criticize your government, all protected.” Great rhetoric, worthy of praise.
Yet these words from candidate Joe Biden introduced President Joe Biden’s agenda to curtail the very
freedoms those words extol.
Biden’s “Plan to Guarantee Government Works for the
People” acknowledges that the First Amendment prevents his ultimate goal to
“entirely eliminate private dollars from our federal elections.” That’s why
he’ll push for a constitutional amendment to get the people’s rights out of the
government’s way.
During the 2020 election, more
Americans made campaign donations than ever before, and millions of
Americans made their voices heard through independent groups that represented
them. The president wants to ban such civic engagement, which is protected by
the First Amendment.
Biden’s plan would bar so-called outside spending —
speech from groups not controlled by candidates or parties. That term tells you
all you need to know about the mindset behind the plan. Since when are the
people outside our democracy? This, apparently, is the president’s vision of
democracy: a status quo-preserving machine wherein those in power get a
monopoly on political speech, while the people are mere spectators.
Democrats in Congress have introduced legislation to get
us halfway there. H.R. 1
(S.1 in the Senate), takes aim at your “outside” voice, which Biden wants to
silence. The bill also demonstrates how efforts to silence independent groups
won’t stop at speech urging fellow Americans to vote for or against candidates.
H.R. 1’s provisions for “Stopping Super PAC–Candidate Coordination” reach far
beyond super PACs and would capture speech that has nothing to do with
elections. Any organization that discusses policy issues could trigger
the sweeping “coordination” standards. Communications about legislation made
routinely by advocacy groups today would be illegal under H.R. 1.
Say a civil-rights group publishes an analysis
highlighting areas of a criminal-justice reform bill that could be improved.
The sponsor of the legislation reaches out to the group with questions. In the
course of conversation, the senator mentions that she plans to highlight the
bill at an upcoming campaign event. Just like that, this policy discussion has
triggered a speech ban. The group has engaged in “communication . . . regarding
the candidate’s or committee’s campaign advertising, message, strategy, policy,
polling, allocation of resources, fundraising, or other campaign activities.”
As a result, the group is barred from spending a single
penny on speech that “promotes or supports” the senator, “regardless of whether
the communication expressly advocates the election . . . of a candidate.” This
vague language applies to communications made at any time, not just close to an
election. Simply urging lawmakers to “support Senator Jane Doe’s Sentencing
Reform Act” could be banned under H.R. 1. If the bill is pending 120 days
before a general election with the senator on the ballot, the ban would apply
to “a communication which refers to” the senator, even if it is not deemed to
promote or support the lawmaker.
Like Biden’s plan, the text of H.R. 1 states that
ultimately “the Constitution should be amended” to rein in First Amendment
freedoms. Separately, House Democrats recently reintroduced the
“Democracy for All Amendment,” which would grant Congress the unlimited power
to “set reasonable limits on the raising and spending of money by candidates
and others to influence elections.” If the Biden plan is any indication of what
Democrats consider “reasonable limits,” then one can assume that entirely
eliminating campaign donations and independent speech is on the table. And
again, don’t expect limits, or bans, to stop at electoral advocacy.
If H.R. 1 is passed, Americans will surely defend their
rights in court. The bill’s supporters in Congress likely expect some
provisions to be struck down under the First Amendment, as happened to both the
Federal Election Campaign Act of 1971 and the Bipartisan Campaign Reform Act of
2002, better known as McCain-Feingold. They don’t care. They’ll have another Citizens
United to hype, a new “threat to democracy” du jour. The substance won’t
have to live up to the rhetoric — after all, Citizens United, a case
decided in 2010, struck down a federal law that resulted in a ban on a movie
about then-Democratic primary candidate Hillary Clinton. The Supreme Court’s
decision has been a boon
to free political speech, while none
of the doomsday predictions have come to pass. And remember, congressional
Democrats have long supported a constitutional amendment limiting First
Amendment rights. Biden himself co-sponsored
such an amendment in 1997. The rallying cry to “overturn Citizens United”
is little more than a marketing tactic.
Too many elected officials think the people’s right to be
heard in a democracy should begin and end on the day you vote. Perhaps that’s
why they’re always sure to
let you know they intend to make voting “easier, not harder.” It’s as if to
say, “Here’s your democracy, now shut up.”
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