Part of the problem with the growing First Amendment lawfare discussion is that the recent history of it is convoluted. The left can say that the right is hypocritical for seeking to turn the power of government against disfavored speech. (They have a point.) The right can say the left is simply engaged in special pleading, using principles they don’t follow against us. (They are.) The problem the left is going to have is that, in the past, when Republicans have tried to apply neutral rules to the topic of policing speech, the left has tended to oppose it. They are trying to weasel out of a bed of their own making.
You can start with how — for decades — the left has pursued robust donor disclosure as a way to punish disfavored speech. Now it’s the right that is turning on the left’s donors. Will Common Cause suddenly embrace orthodox McConnellism? I won’t hold my breath. More likely they’ll just settle on weaponized disclosure for thee but not for me. The principled position for conservatives here is to continue to fight disclosure on all fronts, regardless of party, and to invite the other side to embrace neutral rules consistent with constitutional values.
But that doesn’t answer the question of what the party in power now is likely to do under existing rules laid down by the left. The left built a machine to go after the right — and only the right — yet now the right is in control of that machine. The right can’t destroy that machine on its own, only turn it off. It’s hard to fault those in charge for not wanting to do that, letting it collect dust until Democrats, in charge again, turn the machine back on.
There’s a concrete example supporting this metaphor in recent Senate history. In 2023 the Senate Select Committee on Intelligence considered a reauthorization of the Intelligence Community (S. 2103, the Intelligence Authorization Act for Fiscal Year 2024). In the version reported out of committee, there was a prohibition on the Department of Homeland Security’s intelligence arm, the Office of Intelligence and Analysis (I&A), collecting intelligence on or targeting any U.S. person other than in support of state and local law enforcement. (Section 312) The prohibition was clear and direct. It was a reform stemming from reports about just how extensive I&A’s domestic intelligence-gathering operations were, to the shock of many Republicans.
While I&A’s activities have also been opposed by the anti-law-enforcement left, like the Brennan Center, not so much among elected Democrats. The prohibition was added to the authorization bill by vote in committee where it passed by a vote of ten to seven. All seven were Democrats, with Senators Heinrich and Ossoff breaking ranks to join all the committee’s Republicans to give the amendment a majority. Then-Chairman Mark Warner said of the provision, “I share the concerns of many of my colleagues regarding the activities of DHS I&A, particularly as they relate to the challenges the Office appears to face in consistently producing intelligence reports that meet analytic standards. Nonetheless, this amendment is not the solution.”
Fast forward to the enacted intelligence authorization — included as Division G of the FY24 National Defense Authorization Act — and you see a very different restriction. Section 7324 of the act purported to restrict I&A’s activities, but gone was the simple, clear prohibition on domestic spying by the Department of Homeland Security. In its place is a Rube Goldberg taken from the House authorization that applies specifically to activities like the right to counsel, Section 7324(a)(2)(A), or the protection of journalists, Section 7324(a)(2)(B), all under the auspices of one particular I&A program, that of Overt Human Intelligence Collection. The enacted statute purports to prohibit funding for I&A that goes to Overt Human Intelligence Collection inconsistent with the statutory restrictions but, of course, this was in the defense authorization act, not the appropriations bill for Homeland Security. The subsequent continuing resolutions did not take this funding restriction into account, rendering it relatively toothless.
How a bill goes from committee to enactment on a must-pass vehicle is a little mysterious, but it’s not hard to infer from this legislative history that House and Senate Democrats demanded the watered-down, unanimously passed House version.
Senate Republicans would have essentially stripped Kristi Noem and President Trump of a key domestic-spying apparatus and were foiled by congressional Democrats who didn’t want to unduly hobble Alejandro Mayorkas and Joe Biden. In the end Noem now has this domestic spying tool at her disposal, only restricted by the Byzantine and weak restrictions that Democrats agreed to in 2023. The undersecretary in charge of I&A seems inclined to use the tools at his disposal, to the consternation of Senate Democrats like Senator Ron Wyden, who opposed taking those tools away only two years ago.
Perhaps Democrats will learn from this and similar experiences and work in good faith with Republicans to bolster the institutional protections for constitutional values like free speech and free association. (And hopefully enough Republicans will remain committed to constitutional principles that they will be willing to do so.) But until then, the story of failed I&A reform is just one of many examples where Democrats are likely to regret their left-wing politics of who/whom.