Democrats’ H.R. 1 Sets ‘Unconstitutional’ Limits on 1st Amendment: Free Speech Group

February 23, 2021 Updated: February 23, 2021

House Democrats’ massive voter registration and campaign procedure reform bill gives federal bureaucrats vast new power to control political speech, according to an analysis of the proposal by the Institute for Free Speech (IFS).

“All of the provisions we analyzed are bad ideas, some of them are plainly unconstitutional, and some of them it would be dubious whether they were constitutional,” IFS President David Keating told The Epoch Times on Feb. 22.

Keating was referring to H.R. 1, the “For the People Act of 2021,” the top priority legislation of Speaker of the House Nancy Pelosi (D-Calif.), which includes a wide range of reforms in how Americans register to vote and cast their ballots in federal elections, as well as who can participate and how in campaigns for president, Senate, and the House of Representatives.

If H.R. 1 becomes law in its present form, according to critics, it will undermine constitutional liberties, while institutionalizing many of the registration and voting procedure changes made in 2020 in response to the CCP virus pandemic. Those changes produced one of the most bitterly contested presidential outcomes in U.S. history.

“Buried in H.R. 1’s nearly 800 pages is a censor’s wish list of new burdens on speech and donor privacy. It proposes a democracy where civic engagement is punished and where fewer people have a voice in our government, our laws, and public life,” Eric Wang, the author of the study, said in a statement accompanying the release of the analysis. He is an IFS senior fellow and special counsel in the election law practice group at the Washington law firm of Wiley Rein, LLP.

Among the 14 constitutional problems identified by the IFS analysis in H.R. 1’s Title IV—including especially subtitles B, C, and D—the first are provisions that “unconstitutionally regulate speech that mentions a federal candidate or elected official at any time under a vague, subjective, and dangerously broad standard that asks whether the speech ‘promotes,’ ‘attacks,’ ‘supports,’ or ‘opposes’ (PASO) the candidate or official.”

“This standard is impossible to understand and would likely regulate any mention of an elected official who hasn’t announced their retirement.”

The proposal does that by creating a new category of regulated speech called “campaign-related disbursements” by nonprofit advocacy groups and others interested in communicating about public policy issues.

Such speech would include any public communications that mention a specific candidate for federal office and attacks or supports that candidate “without regard to whether the communication expressly advocates a vote for or against” the candidate.

It would also include any public communication that is “susceptible to no reasonable interpretation other than promoting, supporting, attacking, or opposing the nomination or Senate confirmation” of a federal court nominee.

Also included would be all public communications that meet the current law’s definition of “electioneering communications,” that is, radio and TV ads that merely mention a candidate or officeholder by name. It also would impose significant new regulatory compliance costs on all internet political speech that isn’t paid advertising.

“Thus, if H.R. 1 were enacted, it is likely that anyone operating a website, for example, may unwittingly run afoul of the [Federal Election Commission] FEC’s disclaimer and reporting requirements by posting unflattering information about a federal candidate or elected official,” the IFS analysis contends.

“This is because the costs of hosting and maintaining a website likely would qualify the website as a ‘paid Internet or paid digital communication.’

“Similarly, a group that shares a voter guide or a legislative scorecard using a paid e-mail service or mobile device app likely would be making a ‘paid Internet or paid digital communication’ under H.R. 1. Even a group’s Facebook posts, Twitter tweets, and YouTube uploads could be regulated if paid staff are used to create such content.”

Other unconstitutional problems among the 14 identified by the IFS study include provisions of H.R. 1’s Title IV that:

  • “Impose inflexible disclaimer requirements on online ads from American speakers that may make many forms of small, popular, and cost-effective ads advocating government policy changes or the election or defeat of candidates effectively impossible.
  • “Force groups to file burdensome and likely duplicative reports with the [FEC] if they sponsor ads that are deemed to PASO the President or Members of Congress in an attempt to persuade those officials to support or oppose policy issues, including legislation like H.R. 1.
  • “Force groups to publicly identify certain donors on these reports for issue ads and on the face of the ads themselves. In many instances, the donors being identified will have provided no funding for the ads. Faced with the prospect of being inaccurately associated with what, by law, would be considered (unjustifiably, in many or most instances) ‘campaign’ ads in FEC reports and disclaimers, many donors will stop giving to nonprofits, or these groups will self-censor.
  • “Force organizations that make grants to file reports and publicly identify their own donors if an organization is deemed to have ‘reason to know that a donee entity has made or will make so-called campaign-related disbursements.’ This new vague and subjective standard will greatly increase the legal costs of vetting grants and many groups will simply end grant-making programs.
  • “Focus public attention on the individuals and donors associated with the sponsoring organizations rather than on the communications’ message, exacerbating the politics of personal destruction and further coarsening political discourse.”

In summary, the IFS analysis concluded that H.R. 1 “would greatly increase the already onerous legal and administrative compliance costs, liability risk, and costs to donor and associational privacy for civic groups that speak about policy issues and politicians.”

“Organizations and their supporters will be further deterred from speaking or be forced to divert additional resources away from their advocacy activities to pay for compliance staff and lawyers.

“Some groups will not be able to afford these costs or will violate the law unwittingly. Less speech by private citizens and organizations means politicians will be able to act with less accountability to public opinion and criticism. Consequently, citizens who would have otherwise heard their speech will have less information about their government.”

Contact Mark Tapscott at Mark.Tapscott@epochtimes.nyc