Throughout the 2000s, then–Harvard professor Elizabeth Warren wanted desperately to influence members of Congress. She wanted the government to enact stricter regulations on banks and home loans, and she vigorously advocated that policy. She testified before Congress, worked with a number of groups to promote her plans, and shared her perspectives with as many policymakers as possible. As she recounted in a presidential town hall this year: “I was waving my arms, ringing the bell, doing everything I could. I said families are getting cheated all over this country. . . . I went everywhere I could. I talked about it to anyone who would listen — a crisis is coming.”
“Anyone who would listen” included members of Congress. NBC News reported that Warren “bent the ear of [then-senator] Hillary Clinton,” and by the Democratic primary campaign in 2007 Warren was “lobbying candidates behind the scenes to create what would become the Consumer Financial Protection Bureau.”
In 2019, Senator Elizabeth Warren is proposing legislation that would restrict, tax, regulate, and otherwise impede the activities of Americans who want to advocate public policies, just as she herself did ten years ago. She calls it a plan to end corruption. It won’t work; in fact it will hurt the very people it is supposed to help, and will establish deeply rooted government bureaucrats who can shut down — or even jail — Americans who speak out or support groups that speak out. Whether or not it becomes law, the proposal offers a window into the way all too many progressives (and even some conservatives) approach the regulation of politics and political speech.
Senator Warren frames her measure as an attack on the influence of the wealthy, but it is really an attack on the influence of anyone outside government. The proposed law would regulate as lobbying virtually any activity intended to influence any government action. It would tax any organization, no matter how large, that spends more than $500,000 per year on “lobbying.” Anything more than that is “excessive,” she writes.
Does that look good on paper? It won’t in practice. For comparison’s sake, note that the federal government spent over $4 trillion in 2018 alone. Federal regulations impose additional costs on Americans each year amounting to trillions of dollars. Major government projects are enormously expensive: The Trump administration recently diverted $3.6 billion in military funds for the construction of a border wall, and that only scratches the surface of the wall’s total projected cost.
Most Americans don’t hold a prestigious post at Harvard University and never receive an invitation to testify before Congress. They must make their voices heard by joining membership organizations, pooling their resources, and speaking as a group. Imposing a special tax on groups that spend less than 0.000012 percent of what the leviathan they’re up against spends insulates the powerful from critique and opposition, accomplishing exactly the opposite of the proposal’s anti-corruption goals.
Progressives imagine that such a law would sap the political strength of groups such as the National Rifle Association and the Chamber of Commerce. Then they would have a better chance of passing aggressive policies on gun control and climate change. But the same law would kneecap the ACLU and Planned Parenthood. Both organizations spend over a million dollars per year on lobbying. The proposed law’s expanded definition of lobbying would also harm groups with little involvement in partisan politics, such as the American Red Cross and United Way of America.
Senator Warren writes that “the goal of these measures is straightforward: To take power away from the wealthy and the well-connected in Washington and put it back where it belongs — in the hands of the people.” But what about the people who support groups such as the NRA or the ACLU — organizations with over a million members each — or any one of the thousands of groups that keep a watchful eye on the government while their members are busy living their lives?
Working together, those Americans have a real voice. Will the federal bureaucracy listen to them better when their voice is reduced to a whisper? Or will it turn to fellow bureaucrats and friendly “experts” — maybe university professors — to lead the way?
Senator Warren’s proposal tells the government to fill the gaps her plan would leave in civil society. It creates a “National Public Advocate” to “help the public engage” with the regulatory-
rulemaking process. In the process for public comment on proposed regulations, it also would withhold any non-peer-reviewed research deemed to have “conflicts of interest.” What does that even mean? Groups that file comments with regulatory agencies have no decision-making power over those agencies, which is the standard that would traditionally establish a conflict-of-interest concern. Senator Warren’s proposal appears aimed at silencing those who stand to gain or lose from a proposed regulation. Shouldn’t the government hear from people who will be affected by its actions?
This gets to the fundamental flaw in Warren’s approach: It misdiagnoses the problems in our democracy. Advocacy groups are not the enemy of the people. They are the voices of the people, amplified so that government cannot easily ignore them. In aiming to restrict those voices, Senator Warren’s bill would weaken our democracy to strengthen the bureaucracy. What she calls power for the people is actually power for politicians.
True small-“d” democratic reforms would make it easier to participate in the political process. We should reduce and simplify the hundreds of pages of statutes and regulations that make up our federal campaign-finance laws. Americans should not need to consult an attorney to promote a policy idea or a campaign. This approach would put real power in the hands of the people. Maybe that’s why politicians shy away from it.
Instead, they propose plans that would wreak havoc on constitutional rights in order to limit the ability to oppose government action. But just as the government cannot tax the “excessive” exercise of religion, or the “excessive” publishing of newspaper editorials, it has no business imposing a special tax on groups that exercise their petition rights “excessively.” The Supreme Court has consistently struck down limits on how much private individuals and organizations can spend to promote or oppose a candidate for office. Similarly, bans on some types of lobbying and a tax on “excessive lobbying” are likely to face constitutional challenges. Senator Warren’s proposal also would ban lobbyists from making campaign contributions, serving as bundlers, or hosting fundraisers. Yet the First Amendment protects both the right to petition and the right to give to candidates. The government cannot demand that you sacrifice one First Amendment right to exercise another.
Far from being a bold path forward, Warren’s proposed law doubles down on the same flawed approach that has driven efforts to regulate campaign finance for nearly 50 years: regulate more activity and punish violations more harshly. This system has never worked. In fact, regulation is what has turned lobbying into a professional endeavor that average Americans by and large can’t participate in. Wealthy interests can always hire the cleverest attorneys and operatives to work through the rules to exercise influence. Grass-roots efforts are much more easily stifled by complex and punishing laws.
The consistent theme throughout plans such as Warren’s is that the federal government should be more muscular and more active in limiting political participation. That’s bad news for people who want a say in their government. The First Amendment is not just a permission slip to rant on a street corner. It protects the right to engage in effective public advocacy together with like-minded people.
Under Senator Warren’s proposed law, we would be left with a toothless First Amendment ill equipped to hold political leaders accountable. That is not a plan to end corruption — it’s a plan to let it run rampant.
Mr. Smith is a professor of law at Capital University, the chairman of the Institute for Free Speech, and a former chairman of the Federal Election Commission. Mr. Wachob is the communications director of the Institute for Free Speech.
This article appears as “Silencing the Dissent ” in the October 14, 2019, print edition of National Review.