Law & the Courts

Nancy Pelosi’s Threat to Free Speech

Speaker of the House Nancy Pelosi at a Capitol Hill press conference, February 28, 2019. (Joshua Roberts/Reuters)
The speech-restricting H.R. 1, which passed the House last week, is an affront to the Constitution.

The same Democrats outraged by Donald Trump’s alleged offenses against the First Amendment passed, as their first priority, a speech-restricting bill opposed by the American Civil Liberties Union.

Trump shouldn’t call the media “the enemy of the people” or inveigh against Jeff Bezos for owning the Washington Post, but Nancy Pelosi’s H.R. 1, which passed the House last week, is the true affront to the Constitution.

The wide-ranging legislation purports to reform campaign finance with a series of vague, sweeping measures that will act to chill speech when they don’t actively regulate or squelch it. H.R. 1 is called the For the People Act but would be more aptly titled the Be Careful What You Say, It Might Be Illegal Act.

Progressives can’t abide the notion that people in this country get together to spend money on advocacy outside the purview of the government — in other words, freely promote their favored causes as befits a free people living in a free country.

H.R. 1 cracks the whip. As the Institute for Free Speech points out, the current campaign-finance rules limit expenditures that expressly advocate for the election or defeat of a candidate, or refer to a candidate in public advertising shortly before an election. The idea is to have clear rules so groups can promote their views without fear of running afoul of federal regulations.

H.R. 1 blows this regime up. It seeks to regulate any speech at any time that “promotes or supports the candidate, or attacks or opposes an opponent of the candidate,” a fuzzy standard that could catch up all manner of nonelectoral messages (e.g., “Trump’s tariffs are a mistake,” or “Support Trump’s wall”).

H.R. 1 also widens the definition of coordination between a group and a candidate to encompass almost any communication. It’d still be permissible to discuss a candidate’s position on an issue, so long as there is no talk “regarding the candidate’s or committee’s campaign advertising, message, strategy, policy, polling, allocation of resources, fundraising, or other campaign activities.”

Even if a group doesn’t coordinate with a candidate under this loose standard, it could still be deemed to have coordinated if it were founded by someone who goes on to become a candidate; relies on the professional services of someone who also did work for a candidate; or is run by someone who had conversations about a campaign with the relative of a candidate.

On top of all this, H.R. 1 goes after the privacy of donors to advocacy organizations. It mandates the disclosure of the names and addresses of donors giving more than $10,000 to groups that engage in “campaign-related disbursements.” Given our toxic political environment, this would potentially subject the donors to harassment and abuse, and they might not even be aware of or support the communications in question.

Supporters of H.R. 1 say it is necessary to rein in super PACs, the frightening-sounding organizations that aren’t as unregulated as everyone believes (the Federal Election Commission gets reports of their expenditures and contributions). But, as the Institute for Free Speech notes, the bill affects a much broader array of “trade associations, unions, business groups, and advocacy organizations, such as Planned Parenthood and the National Right to Life Committee.”

Love them or hate them, these groups are part of the warp and woof of American public life, and they shouldn’t have to think twice before engaging in acts of persuasion that enrich and enliven our democracy, not corrupt it.

The Supreme Court has long put an emphasis on bright lines in its campaign-finance jurisprudence exactly to avoid a chilling effect on advocacy. It has said that laws must be “both easily understood and objectively determinable.” The campaign-finance provisions of H.R. 1 are neither.

What H.R. 1 makes abundantly clear is that the foremost threat to the First Amendment are the people who believe that there is something untoward about unregulated political speech and seek to bring it under control.

© 2019 by King Features Syndicate

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