House Democrats Seek Host of New Limits on Political Speech

January 9, 2019 Updated: January 9, 2019

Candidates for federal offices, plus their campaign backers and opponents, would face a host of new limits on what they can say and do if the House Democrats’ “For The People Act” becomes law.

Democrats only control the lower chamber in Congress, so the measure, H.R. 1, won’t become law before the 2020 elections, if ever, but the 571-page proposal erects multiple billboards on the road that Democrats will take if voters put them back in the driver’s seat.

For Rep. John Sarbanes (D-Md.), chairman of the Democrats’ new Democracy Reform Task Force that drafted the bill, H.R. 1 is “a once-in-a-generation package of democracy reforms.” His father, Sen. Paul Sarbanes (D-Md.), retired from the Senate in 2007.

“The overwhelming influence of money and special interests is a cancer in our democracy that needs to be removed,” House Judiciary Committee Chairman Jerrold Nadler (D-N.Y.) told journalists during a Jan. 4 news conference to introduce H.R. 1.

Thus designed to “end the dominance of big money in our politics,” according to Sarbanes, the two titles and 25 subtitles that make up the campaign-finance section of the bill will definitely shake up the political process.

Among the most significant of the measure’s proposals are those providing strict new “dark money” disclosure requirements for non-profits’ political spending, and a directive that “large digital platforms” create searchable public databases of political ad buyers.

The proposals also include extensive new public-funding options for congressional and presidential elections, and heightened prohibitions on coordination between candidates and “Super PACs.”

‘Remarkably Comprehensive’

For Erin Chlopak, the Campaign Legal Center’s (CLC) chief strategist and former head of the Federal Election Commission’s policy division, the broad swath of H.R. 1’s provisions is a feature, not a flaw. The CLC “weighed in” with congressional staff during H.R. 1’s drafting, she said.

“I think it’s remarkably comprehensive,” Chlopak told The Epoch Times. “It deals with disclosure and two of the biggest weaknesses of current disclosure requirements, tracing the true sources of campaign funds and the loopholes in the current online advertising space.”

Chlopak also likes the provisions dealing with foreign money going to U.S. campaigns and with corporations with significant foreign-ownership interests, the major public-funding components, and new rules for coordination with Super PACs.

The provision that’s likely to generate the most public debate is H.R. 1’s call for a constitutional amendment to nullify the Supreme Court’s 2010 Citizens United and 2014 McCutcheon decisions, which upheld the right of labor unions and corporations to make unlimited independent expenditures and struck down aggregate limits on individual contributions.

Depending on the specific wording of an enacted amendment, it could “take us back to before [Buckley v. Valeo, 1976] by recognizing the authority” of Congress to limit candidates’ spending,” Chlopak noted.

The landmark Buckley decision held that campaign spending is political speech that Congress can’t regulate, which is why H.R. 1’s call for such an amendment is a huge red flag to David Keating, president of the Institute for Free Speech.

‘Regulating Speech’

“We think that much of this bill is aimed at regulating speech and not the government, “ Keating told The Epoch Times. “We’re sort of adopting the name ‘For The Politicians Act’ rather than the ‘For The People Act.’

“To the extent there are subsidies for speech, it’s for the speech of people running for Congress, and it’s up to nine-to-one in some parts of the year, so if they raise a dollar, they get nine more dollars.”

Keating lauded the fact that campaign-finance-reform advocates have previously focused on limiting total candidate spending, whereas H.R. 1 takes a new approach with the contribution matching, but “it’s such an expensive match, it’s hard to imagine the public swallowing it.”

Keating questioned the bill’s new limits on coordination between candidates and Super PACs because “there are already limits there. These strike me as too much” because it bars the creation of a committee to back a candidate up to four years prior to his or her filing for the office.

“I mean four years prior to someone running, and then you are automatically a ‘coordinated spender?’ That seems to me to be pretty crazy,” Keating said. “It’s an example of overreaching.”

Another red flag for Keating is H.R.1’s restructuring the FEC to a five-member panel with a ruling partisan majority from six members stressing bipartisanship in its decisions.

“It creates a czar instead of a federal election commission that requires bipartisan action to enforce speech restrictions on people,” he said.

Chlopak said there would still be bipartisanship, however, because there would be four partisan appointees and a fifth independent campaign-finance expert.

Two provisions not in H.R. 1 that should be, Chlopak said, would address barring the personal use of leadership PAC funds and “scam PACs” posing as, for example, a committee to draft a candidate.