Law & the Courts

Democrats’ Astoundingly Unconstitutional Campaign-Finance Bill

Speaker of the House Nancy Pelosi (D., Calif.) stands with Democratic House members before the State of Union in Washington, D.C., February 5, 2019. (Joshua Roberts/REUTERS)
They want the government to dox you.

Today, House Democrats are holding hearings on a monstrous, 571-page election- and campaign-finance-reform bill called the “For the People Act of 2019.” I can think of other, more accurate, names — like the “First Amendment Demolition Act,” or perhaps the “Federalism Repeal Act,” or maybe, most accurate of all, the “Constitutional Lawyers Enrichment Act,” because the passage of the law would trigger a full decade (at least) of litigation on numerous constitutional fronts.

At its essence, the bill federalizes control over elections to an unprecedented scale, expands government power over political speech, mandates increased disclosures of private citizens’ personal information (down to name and address), places conditions on citizen contact with legislators that inhibits citizens’ freedom of expression, and then places enforcement of most of these measures in the hands of a revamped Federal Election Commission that is far more responsive to presidential influence.

The bill is too long and complex to analyze in its entirety in one essay, but let’s pull out a few components.

The bill contains a section misleadingly entitled “Stopping Super PAC-Candidate Coordination” that dramatically expands government regulation of political speech and contact with candidates for public office. These provisions not only work to flatly prohibit constitutionally protected speech, but their sheer scope would also chill a considerable amount of protected speech as law-abiding citizens try to steer clear of violating broad and vague laws.

As Bradley Smith argues in a comprehensive Institute for Free Speech analysis of the legislation, “The goal seems to be to limit discussion of candidates to the candidates and parties themselves, at the expense of the public at large.”

Moreover, in a time of public naming and shaming, when death threats are the common response to public participation, the bill contains a version the so-called DISCLOSE Act, and the transparency requirements are extreme. Quite simply, it represents a form of government-mandated doxxing. For example, it requires any “covered organization” that makes “campaign-related disbursements” aggregating over $10,000 in an election cycle to file a disclosure listing the name and address of any “beneficial owner” of the organization — and that’s just the beginning of the name-and-address disclosure requirements.

The law does at least attempt to protect donors from harassment by saying that disclosure requirements don’t apply “if the inclusion of the information would subject the person to serious threats, harassment, or reprisals.” Yet — as we learn again virtually every day — past information disclosures can and do cause present threats. Indeed, given the tenor of the times, the focus of government should be protecting private citizens from harassment, not exposing them to more intimidation. In other words, transparency is a government obligation, not a citizen responsibility.

Nor is this a new concept. It’s time for Democrats to remember one of the Supreme Court’s landmark cases, NAACP v. Patterson, when the Supreme Court in 1958 blocked the state of Alabama from requiring the NAACP to produce its membership lists as a precondition to conducting its activities in the state. Not only did the Court hold that “immunity from state scrutiny of petitioner’s membership lists is here so related to the right of petitioner’s members to pursue their lawful private interests privately and to associate freely” that it was protected by the Fourteenth Amendment, it specifically noted that “public hostility” can form the foundation for a government obligation to protect individual privacy:

Petitioner has made an uncontroverted showing that, on past occasions, revelation of the identity of its rank-and-file members has exposed these members to economic reprisal, loss of employment, threat of physical coercion, and other manifestations of public hostility.

While no one should equate the day-to-day plight of our modern public-shaming campaigns with the plight of civil-rights workers in the Jim Crow South, it is a simple fact that the price of public participation in our highly polarized times is all too often “economic reprisal, loss of employment, [and] threat of physical coercion.”

Just ask Christine Blasey Ford. She was forced to flee her home when she made sexual-assault claims against Brett Kavanaugh. Just ask the Kavanaughs. They faced their own rounds of threats and reprisals. Just asked the kids of Covington Catholic. The list could go on and on and on.

The bill’s inherent censorship, mandatory doxxing, and startling overbreadth are rendered by the bill’s much-vaunted “revamp”of the Federal Election Commission. Presently, Democratic critics complain of the FEC’s “gridlock” because it cannot act without at least some degree of bipartisan support. FEC action requires four votes out of a maximum of six commissioners. At present, there are only four commissioners, so nothing happens without unanimous support.

HR 1 would shrink the commission to five members appointed by the president (no more than two can be of the same party), but the FEC can take action on majority vote alone. Thus, the FEC can act empowered only by the president’s partisan and independent appointments, over the unanimous objection of members from the opposing party.

In the real world, this means the FEC will be far more responsive to the president. It will be interpreting and enforcing a broad and vague statute according to the president’s priorities. The chill on dissenting speech will be profound.

By the way, I’m approaching 1,000 words, and I haven’t even touched the bill’s startling encroachments on state authority to conduct state elections, including stripping from states their ability to draw their own congressional districts and requiring states to grant felons the right to vote after they’ve completed their sentences. While I agree with granting felons the franchise once they’ve paid their debt to society, the Constitution explicitly (in section two of the 14th Amendment) grants states the power to abridge the right to vote in the event of “rebellion, or other crime.” Statutes cannot repeal constitutional amendments.

There are parts of the 571-page bill that are worthwhile, but they’re lost in a thicket of unconstitutional federal encroachment over the powers of the states and the rights of citizens. Rather than treating political speech as among the most vital forms of expression in our constitutional republic, the Democratic bill treats it as among the most suspect. And while Democrats are fond of pointing out the many times that Trump has blustered against free speech, nothing he has proposed has come close to the “For the People Act of 2019” in prohibiting and chilling the exercise of First Amendment freedoms.

If this is the Democratic agenda, it represents the very creeping authoritarianism they purport to oppose. It should not pass the House. If it does, it must fail in the Senate. And if Democrats win in 2020 and sign it into law, it should meet immediate, determined legal resistance. Political speech is not second-class speech, and let’s leave doxxing to the Internet trolls — the federal government should protect our privacy, not expose us to the angry mob.

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