Testimony of Bradley A. Smith Before the U.S. House Oversight and Reform Committee on H.R. 1

H.R. 1: Strengthening Ethics Rules for the Executive Branch

February 6, 2019   •  By Brad Smith   •    •  , , , , , ,

PDF of testimony available here

Introduction

Thank you Chairman Cummings, Ranking Member Jordan, and Members of the House Oversight and Reform Committee for inviting me to testify today at this hearing on “H.R. 1: Strengthening Ethics Rules for the Executive Branch.”

As you know, H.R. 1 is a massive piece of legislation, totaling an astounding 570 pages in length and altering or uprooting longstanding rules for virtually every piece of U.S. campaign, election, and government ethics law. Of necessity, therefore, I will focus these opening remarks on just a few portions of the bill. For the benefit of this Committee and members of the public, the Institute for Free Speech has produced detailed analyses on individual portions of this lengthy bill, and I have attached those analyses to these remarks and ask that they be considered part of my prepared testimony. I will refer to them in these comments.

Despite proponents’ insistence that H.R. 1 is “For the People,” the bill is anything but. More appropriately labeled the “For the Politicians Act,” H.R. 1 would make seismic changes to the long-held ability of Americans to speak and associate with other Americans on the issues about which they are passionate. The bill would radically transform oversight over the labyrinth of laws that regulate political speech, from its historic bipartisan structure to partisan control. It would impose onerous and unworkable standards on the ability of Americans and groups of Americans to discuss the policy issues of the day with elected officials and the public. Other sections of the bill would violate the privacy of advocacy groups and their supporters, stringently regulate political speech on the Internet, and compel speakers to include lengthy government-mandated messages in their communications. The proposal would also coerce Americans into funding the campaigns of candidates with which they may disagree in a system that research has proven hasn’t worked elsewhere. These issues represent only the tip of the iceberg of what’s included in H.R. 1.

The area of H.R. 1 I will focus on in my comments today is Title VI, “Campaign Finance Oversight,” and I’ll also add a few comments on other portions of this legislation.

Creating a Campaign Speech Czar and Enabling Partisan Enforcement of Campaign Finance Law

If you’re a Democrat, do you think Donald Trump should be able to appoint a campaign speech czar to determine and enforce the rules on political campaigns? And if you’re a Republican, would you have wanted those rules enforced by a partisan selected by Barack Obama?

Of course not. That’s why for over 40 years, Republicans and Democrats have agreed that campaign regulations should be enforced by an independent, bipartisan agency – the Federal Election Commission (FEC). The Watergate scandal that forced Richard Nixon to resign the presidency showed the dangers of allowing one party to use the power of government against the other.

As the late Sen. Alan Cranston (D-Ca.) warned during debate on legislation creating the agency, “We must not allow the FEC to become a tool for harassment by future imperial Presidents who may seek to repeat the abuses of Watergate. I understand and share the great concern expressed by some of our colleagues that the FEC has such a potential for abuse in our democratic society that the President should not be given power over the Commission.”[1] That concern led to Congressional adoption of the present method of selecting Commission members.

Those concerns also caused Congress to structure the Federal Election Commission so that a president could not install a partisan majority that could abuse campaign regulations to bludgeon their opponents.

Bipartisanship is not easy. It requires both sides to recognize they will not always get their way. But for over 40 years, Republicans and Democrats on the FEC were able to do it. Throwing that away is reckless and presents an enormous threat to the First Amendment.

In a nutshell, H.R. 1 does away with the FEC’s existing bipartisan structure to allow for partisan control of the regulation of campaigns and enables partisan control of enforcement. It also proposes changes to the law to bias enforcement actions against speakers and in favor of complainants.

Specifically, H.R. 1 would:

● Transform the Federal Election Commission from a bipartisan, 6-member agency to a partisan, 5-member agency under the control of the president. This change could have the effect of decreasing the Commission’s legitimacy by significantly increasing the likelihood that the agency’s decisions will be made with an eye towards benefiting one political party, or, at best, be seen that way by the public.

● Empower the Chair of the Commission, who will be hand-picked by the president, to serve as a de facto “Speech Czar.” In particular, the Chair would become the Chief Administrative Officer of the Commission, with the sole power to, among other things, appoint (and remove) the Commission’s Staff Director, prepare its budget, require any person to submit, under oath, written reports and answers to questions, issue subpoenas, and compel testimony.

● Dispose of the requirement in existing law that the Commission’s Vice Chair come from a different party than the Chair, further allowing power at the agency to be consolidated within one party.

● Time the enactment of this provision to ensure continued one-party control of the Commission. As a result, the president elected in 2020 will be able to ensure that his or her appointees constitute a majority of the Commission and the powerful Chair’s Office through at least 2027, even if he or she is not re-elected in 2024.

Relatedly, this structure will result in all new regulations required under other provisions of H.R. 1 being written by the initial appointing president’s team of the Chair, supportive commissioners, and their appointed General Counsel. These provisions can be written (and if necessary re-written) with a specific eye to the 2022 and 2026 midterms and the 2024 and 2028 presidential races.

● Expand the General Counsel’s power while eroding accountability among the Commissioners. In a departure from existing practice, H.R. 1 provides that the General Counsel may initiate an investigation if the Commission fails to pass a motion to reject the General Counsel’s recommendation within 30 days. Such a change allows investigations to begin without bipartisan support while also allowing commissioners to dodge any responsibility for their decisions by simply not taking a vote and letting the General Counsel’s recommendation take effect.

H.R. 1 also permits the General Counsel to issue subpoenas on his or her own authority, rather than requiring an affirmative vote by the Commission.

● Create new standards of judicial review that weaken the rights of respondents in Commission matters. If a respondent challenges in court a Commission decision finding that it violated the law, the court will defer to any reasonable interpretation the agency gives to the statute, but if the respondent wins at the Commission, no deference will be given to the FEC’s decision, if challenged in court. This “heads I win, tails you lose” approach harms respondents and biases court decisions against speakers.

● Establish a non-binding “Blue Ribbon Advisory Panel” to aid the president in filling Commission vacancies that is exempt from the requirements of the Federal Advisory Committee Act, effectively creating an elite committee to debate in secret, on the public’s dime, and with the imprimatur of the government, on whom the president should appoint to the agency.

● Hamstring the FEC in its advisory opinion process by mandating that interested parties who submit written comments to the Commission must be allowed to present testimony at meetings on advisory opinion requests. This change is akin to dictating to Congress who has a right to testify in committee hearings.

All these changes are said to be necessary to “restore integrity” to the regulation of campaigns. In fact, nothing would more rapidly damage the FEC’s integrity than H.R. 1’s proposed restructuring. Supporters of the out party would have no confidence in the agency’s decisions, a surefire way to increase skepticism among Americans that our elections are fair and unbiased.

The attached analysis, “Analysis of H.R. 1 (Part Two): Establishing a Campaign Speech Czar and Enabling Partisan Enforcement: An Altered FEC Structure Poses Risks to First Amendment Speech Rights,” provides a more detailed explanation of why Title VI, Subtitle A of H.R. 1, wrongly dubbed the “Restoring Integrity to America’s Elections Act,” would in fact do just the opposite.[2]

Targeting Speech by All Groups Under the Guise of “Stopping Super PAC-Candidate Coordination”

Subtitle B of Title VI is incorrectly titled, “Stopping Super PAC-Candidate Coordination.” This is truly misleading in the most literal sense of the word, because Subtitle B applies not only to super PACs, but to literally any American or group of Americans who seek to speak about candidates or public affairs. This should be repeated at the outset – none of the new restrictions in Subtitle B are limited in their application to “super PACs.”

In addition, Subtitle B of Title VI of H.R. 1 would place sweeping new limitations on speech about campaigns and public affairs. It would make illegal huge amounts of speech that have either never before been illegal in America, or more specifically, not been illegal since the brief reign of the Alien and Sedition Acts. It does so in a very complex, vague, and unintuitive manner. The provisions are so complex and open to so many possible interpretations that my comments may well understate the chill this portion of the legislation might place on speech. For advocacy groups, unions, and trade associations, several of the limits proposed in H.R. 1 would operate as a total ban on speech.

The goal seems to be to limit discussion of candidates to the candidates and parties themselves, at the expense of the public at large. However, even candidates are likely to find their speech severely restricted were H.R. 1 to become law.

In short, Subtitle B would raise the following concerns:

● Although this portion of H.R. 1 purports to be focused on “Stopping Super PAC-Candidate Coordination,” it is important to reiterate that the changes it would make to the law create regulations and penalties that would apply to every group engaged in public discussion of issues and elections, not just super PACs.

● Under this portion of H.R. 1, speakers will be silenced both literally – through direct prohibitions on speaking – and also through fear, known as chill. Many communications by advocacy groups about legislation that are made routinely today would be illegal under H.R. 1. Many (and likely the vast majority) of these communications have nothing to do with election campaigns. Rather, groups will be silenced when trying to participate in public debate on important policy issues.

● Under existing law, if a civic group, trade association, union, nonprofit, or any other type of organization wants to spend money to discuss candidates and issues, it is regulated as a coordinated expenditure only if it meets both “content” and “conduct” standards. The “content” standards are intended to allow groups to communicate with the public about issues of concern without fear of triggering federal investigations. The “conduct” standards are meant to ensure that groups are not held liable for later expenditures merely because they have general conversations with candidates and officeholders about legislative priorities and issues. H.R. 1 attacks both.

● The radical new coordination standard proposed in H.R. 1 would be interpreted and enforced by a revamped FEC, which for the first time would be under partisan control of the president. If the FEC decides that certain communications are “coordinated,” the agency could impose hefty fines on the organization.

● The “promote, attack, support, oppose” (PASO) standard that applies year-round to the content of coordinated communications is a green light for the government and even private litigants to impose huge legal costs on almost any group’s effort to communicate about politics and issues – except through the speech of candidates and parties themselves.

● H.R. 1 would replace carefully defined rules about what conduct constitutes “coordination” with a sweeping definition that would subject even minimal and mundane communication with members of Congress on legislation to investigation and possible fines and punishment.

● Using virtually any publicly available information that communicates a candidate’s suggestions on the type of message his or her campaign seeks to convey would trigger the conduct standard for coordination. Likewise, any public information regarding the campaign’s strategy would do so too. If taken literally, H.R. 1 would require potential speakers to not use the Internet, watch television, read a newspaper, listen to the radio, or talk to anyone to avoid possible coordination.

● H.R. 1 would also define many groups as “coordinated spenders,” even if they never actually “coordinate” anything, but speak truly independently of any candidate or party. Incorporated nonprofits defined as “coordinated spenders” would be banned from spending money on speech. This provision is directly contrary to Supreme Court precedent. In Colorado Republican Federal Campaign Committee v. FEC, the Supreme Court held that the FEC could not simply presume coordination – rather, coordination had to actually be proven to exist in fact in order to be regulated.[3] The reason for this is that these types of restrictions on speech are only permissible to prevent quid pro quo corruption. But, if an organization is not actually coordinating its activity with a candidate or officeholder, the danger of that corruption doesn’t exist.

● This portion of H.R. 1 is also likely to be found unconstitutional due to its overbreadth and vagueness. It requires spending to be “entirely independent[] of the candidate,” a standard which it says is not met if there is any “general or particular understanding” between the spender and the candidate, or “any communication with the candidate, committee, or agents about the payment or communication.”[4] Even discussions of purely legislative or policy matters would be covered and subject to coordination restrictions unless there was “no communication … regarding the candidate’s or committee’s campaign advertising, message, strategy, policy, polling, allocation of resources, fundraising, or other campaign activities.”[5]

Federal courts have emphatically rejected the idea that mere knowledge of a campaign’s plans and strategies is sufficient to find coordination, even when the information was not public. Rather, “coordination” necessitates candidate control over the expenditures or, at a minimum, “substantial discussion or negotiation.” That means the campaign and the spender had to discuss such things as the content, timing, location, means, or intended audience for the communication – the standards since captured in the existing law that H.R. 1 seeks to repeal and replace. “Coordination” is found only where “the candidate and spender emerge as partners or joint venturers.”[6]

● Title VI, Subtitle B of H.R. 1 also imposes unconstitutionally overbroad and vague descriptions of the type of speech that government can prohibit. The Supreme Court has long held that to the extent government can regulate independent campaign speech at all, it must do so in a manner that is neither overly broad nor excessively vague in its language. In particular, to be regulated, such speech must “be susceptible of no reasonable interpretation other than as an appeal to vote for or against a clearly identified Federal candidate.”[7]

The PASO standard in H.R. 1 clearly fails this test. Suppose, for example, a government employees’ union wished to purchase a newspaper ad saying, “Government employees should not be held hostage to a border wall. It’s time to end the government shutdown.” Is that a statement “attacking” President Trump? Suppose it referred to “Trump’s wall.” If that is a statement attacking Trump, it would meet the content standard in H.R. 1, and the union would be banned from making such speech, if it also met the newly expanded “conduct” standard discussed above.

● Like current law, H.R. 1 would make republication of campaign material a coordinated activity. However, current law provides several sensible exceptions, which H.R. 1 repeals. Failure to include such exceptions would suppress publication of useful information.

● H.R. 1 eliminates the “safe harbor” for firewalls that allow for use, in certain circumstances, of a common vendor. The effect will be to make it harder for smaller groups to hire good professional help. More specifically, this will negatively impact new and smaller grassroots organizations at the expense of established, bigger spending actors.

Subtitle B responds to a concern that, in certain particular cases, super PACs are working closely with individual candidates, by laying vast new restrictions on political speech by American citizens. It cannot be said too often: Nothing in this Title restricts its provisions to super PACs. Rather than narrowly target and respond to that specific concern, this portion of H.R. 1 will effectively silence all groups that speak about campaigns and public affairs. Consequently, many portions of Subtitle B are clearly unconstitutional under existing Supreme Court precedent.

The Institute for Free Speech has analyzed these (and other) problems with H.R. 1 in “Analysis of H.R. 1 (Part Three): New Restrictions Target Speech by All Groups Under the Guise of ‘Stopping Super PAC-Candidate Coordination,’” which is attached to this statement.[8]

Violating Americans’ Privacy, Regulating Internet Speech, and Compelling Government-Sponsored Messages

Numerous other parts of H.R. 1 are also problematic, either as a matter of policy, constitutional law, or both. Specifically, H.R. 1 would:

● Force groups to file burdensome and likely duplicative reports with the Federal Election Commission, if they sponsor ads that are deemed to PASO the president or members of Congress in an attempt to persuade those officials on policy issues.

● Compel groups to declare on these so-called “campaign-related disbursement” reports that their ads are either “in support of or in opposition” to the elected official mentioned, even if their ads do neither. This form of compulsory speech and forcing organizations to declare their allegiance to or against public officials is unconscionable and unconstitutional.

● Force groups to publicly identify certain donors on these reports for issue ads and on the face of the ads themselves. Faced with the prospect of being inaccurately associated with what, by law, would be considered (unjustifiably, in many or most instances) “campaign” ads in FEC reports and disclaimers, many donors will choose simply not to give to nonprofit groups.

● Subject far more issue ads to burdensome disclaimer requirements, which will coerce groups into truncating their substantive message and make some advertising, especially online, practically impossible.

● Focus public attention on the individuals and donors associated with the sponsoring organizations rather than on the communications’ substantive message, thereby exacerbating the politics of personal destruction and further coarsening political discourse.

● Force organizations that make grants to file their own reports and publicly identify their own donors if an organization is deemed to have “reason to know” that a donee entity has made or will make “campaign-related disbursements.” This vague and subjective standard will greatly increase the legal costs of vetting grants, and many groups will simply end grant programs.

● Likely eliminate the ability of many employees to make voluntary contributions through employee-funded PACs, which give employees a voice in the political process with respect to issues that affect their livelihoods.

● Effectively prohibit many domestic subsidiaries, and perhaps most corporations with even a single foreign shareholder with voting shares, from making independent expenditures, contributions to super PACs, or contributions to candidates for state and local office, thus usurping the laws in more than half of the states that allow such contributions. (This appears to be a thinly veiled artifice to overturn Citizens United and to unconstitutionally accomplish by legislation what congressional Democrats failed to achieve by constitutional amendment in 2014.)

● Disproportionately burden the political speech rights of corporations vis-à-vis unions, thereby ending the long-standing parity in campaign finance law between corporations and unions.

● Increase regulation of the online speech of American citizens while purporting to address the threat of Russian propaganda.

● Expand the universe of regulated online political speech (by Americans) beyond paid advertising to include, apparently, communications on groups’ or individuals’ own websites and e-mail messages.

● Regulate speech (by Americans) about legislative issues by expanding the definition of “electioneering communications” – historically limited to large-scale TV and radio campaigns naming a candidate that are targeted to the electorate in close proximity to an election – to include online advertising, even if the ads are not targeted in any way at a relevant electorate.

● Impose what is effectively a new public reporting requirement on (American) sponsors of online issue ads by expanding the “public file” requirement for broadcast, cable, and satellite media ads to many online platforms. The public file requirements would compel some of the nation’s leading news sources to publish information, which is likely unconstitutional.

Both advertisers and online platforms would be liable for providing and maintaining the information required to be kept in these files, which would increase the costs of online advertising, especially for low-cost grassroots movements. Some of these online outlets may decide to discontinue accepting such ads due to the expense of complying with the requirements.[9] The “public file” also may subject (American) organizers of contentious but important political causes like “Black Lives Matter” and the Tea Party to harassment by opponents or hostile government officials monitoring the content, distribution, and sponsorship of their activities.

● Make broadcast, cable, satellite, and Internet media platforms liable if they allow political advertising by prohibited speakers to slip through, thereby driving up the costs of political advertising, especially for online ads where compliance costs are relatively high.

● Impose inflexible disclaimer requirements on online ads that may make many forms of small, popular, and cost-effective ads off-limits for (American) political advertisers.

These provisions are discussed in greater detail in the Institute for Free Speech analysis, “Analysis of H.R. 1 (Part One): ‘For the People Act’ Replete with Provisions for the Politicians,” which is attached to this prepared statement.[10]

Taxpayer-Financed Campaigns: A Record of Failure Forcing Americans to Subsidize Politicians’ Campaign Coffers

Finally, I wish to address briefly the provisions of the bill calling for the government to finance election campaigns.[11] H.R. 1 would provide for the government to match contributions to politicians’ campaigns with $6 in tax money for every $1 contribution, up to the first $200 of a contribution. In some cases, the match can reach 9 to 1: nine dollars in tax money for every dollar donated.

As a matter of first principles, it is morally wrong that, if a donor contributes $1 to Donald Trump’s re-election campaign – or any candidate’s campaign – it forces those opposed to that candidate to contribute $6 or even $9 in public tax money to support that candidate and his or her dissemination of ideas those taxpayers may find abhorrent. But beyond these first principles, the idea has problems on its own terms.

Candidates with close ties to advocacy or labor groups that have large canvassing operations will likely benefit from H.R. 1. If the bill becomes law, it’s a safe bet that these canvassing operations will be made available for hire to favored candidates. For a measure touted as insulating candidates from so-called “special interests,” that’s a major loophole.

Another likely winner under tax-financed campaigns will be candidates who take extreme positions that appeal to small, concentrated groups of voters.[12] Rather than appealing to the middle of the electorate, a viable strategy may be to “play to the base” where supporters are more passionate – and partisan.[13] Given the low turnout in party primaries, taking extreme positions to appeal to a base may even become the dominant strategy.

Traditionally in American politics, political parties have been instrumental in candidate selection and have served as a moderating force overall. Parties have a large incentive to win and therefore want to nominate candidates who appeal to broad swaths of the American public and can win over swing voters. Political parties have used their fundraising apparatuses to favor candidates who fit this mold. Meanwhile, candidates who were viewed as extreme often received little support or funding from the party. While party support (or the lack thereof) didn’t always prevent these candidates from winning elections, the parties’ gatekeeping mechanism certainly provided a moderating function on the types of candidates who were nominated. Taxpayer financing of campaigns threatens to provide a final crushing blow to this important party role.

Look no further than the last election, where some of the best small dollar fundraisers were Donald Trump and Bernie Sanders, respectively. Neither candidate had long been a member of the party whose nomination they sought, yet both came close to securing it, and one did. Programs that turbocharge small dollar candidate fundraising and relegate the parties to the sidelines, like that proposed in H.R. 1, will only lead to more candidates following their example.

Consider how much more difficult it would be for political parties to raise money. What sensible donor would give $50 to a political party if she could give the same $50 to a candidate of that party and have taxpayers foot the bill for $300 or more to match it?

The subsidy will most likely drive donors away from the moderating forces exerted by parties and toward individual candidates. This will likely have the effect of further starving parties that were already hit hard by changes to campaign finance law in 2003.

The potential for tax-financing programs to incentivize polarizing and extreme candidates isn’t merely conjecture. The example of Thomas Lopez-Pierre’s recent campaign for New York City Council is instructive. In 2017, Lopez-Pierre campaigned for a City Council seat on the platform of making “greedy Jewish Landlords” pay.[14] Ultimately, Lopez-Pierre qualified for $99,000 in taxpayer dollars to help spread his hateful message.[15] New Yorkers, including those on the City Council, were rightly appalled by Lopez-Pierre’s anti-Semitic message. Then-Council Speaker Melissa Mark-Viverito said that to “have someone be able to spend [taxpayer dollars] to put forth that kind of a message is despicable.”[16] But under New York City’s matching fund system, there was nothing the City could do. The First Amendment prohibits laws from discriminating against individuals based on the content of their message. As such, if H.R. 1 is enacted, American taxpayers would be constitutionally required to fund the speech of all candidates that meet the qualifications for matching government funding – including those with racist, anti-Semitic, sexist, homophobic, transphobic, or otherwise hateful messages. As Lopez-Pierre’s campaign proves, this concern isn’t unfounded.

Supporters of taxpayer-financed campaign programs often argue that these programs will prevent corruption, but the record suggests otherwise. For a more comprehensive review of corruption in Arizona, Maine, and New York City’s tax-financing programs, please consult the Institute for Free Speech report, “Clean Elections and Scandal: Case Studies from Maine, Arizona, and New York City.”[17] The Institute’s study found that between 2001 and 2013, a staggering total of more than $19.2 million in taxpayer dollars was distributed to participating candidates in New York City’s so-called “clean elections” program, who were then investigated for – and, in many cases, convicted of – abuse, fraud, and other forms of public corruption.[18] The same issues are true in other localities with these programs, such as Los Angeles and Connecticut.[19] Whether its embezzlement, fraud, bribery, personal use, forgery, or straw donor schemes, for any number of abuses, tax-financing programs have a history of corrupt actors exploiting the system for personal gain at the expense of hardworking American taxpayers. In general, wherever tax-financing has been enacted, abuses of these programs – and, by extension, taxpayer dollars – have followed.

It’s perhaps unsurprising tax-financing programs have a history of corruption in every jurisdiction in which they exist. In reality, these programs create new incentives for corrupt candidates – or corrupt staffers and campaign consultants – to cheat and defraud the taxpayers. As just one example, Seattle, which had its first election with tax-financing in the form of the city’s “Democracy Vouchers” program in 2017, already saw its first allegations of fraud. A candidate for Seattle City Council was accused by her campaign manager of contributing her own money to the campaign and claiming it came instead from small donors.[20] This would have entitled her to $100,000 in public financing had she not been turned in by her former campaign manager (and defeated in the primary). Regardless of the outcome, the structure of the matching component of Seattle’s program is what incentivized that individual to commit fraud. As we’ve seen in Arizona, Maine, New York City, and elsewhere, Seattle is not an outlier in this regard.

Finally, the Institute for Free Speech (formerly the Center for Competitive Politics) has examined and debunked a number of theories about how tax-financing programs fail to meet the lofty standards promised by their supporters using evidence from existing programs around the country:

● Legislative voting behavior is unchanged when elected officials participate in tax-financing programs;[21]
● Tax financing fails to reduce lobbyist or special interest influence in government;[22]
● The diversity of occupational backgrounds of state legislators does not increase after implementing tax financing,[23] nor does the percentage of women legislators;[24]
● Giving money to politicians does not save taxpayer dollars in the long run;[25]
● Voter turnout fails to increase when states institute tax financing;[26] and
● Political competition against incumbent lawmakers does not improve in states with tax financing.[27]

Conclusion

There are many other provisions in H.R. 1 that I haven’t covered in my comments, dealing with redistricting, early voting, the Voting Rights Act, lobbying, and more. My comments today cover only those provisions of the bill that most directly impact the First Amendment rights of American citizens. The first step towards fixing the many flaws in H.R. 1 is to split the bill into its component parts, so that it can be properly considered and amended. At that time, the speech portions of H.R. 1 will demand a significant rewrite that respects the benefits of bipartisan campaign enforcement, allows unfettered exchange of political information by U.S. citizens, and protects the First Amendment rights of all Americans.

Thank you.

Read the full testimony here.


[1] Legislative History of Federal Election Campaign Act Amendments of 1976, Federal Election Commission, at https://transition.fec.gov/pdf/legislative_hist/legislative_history_1976.pdf at 89.

[2] This analysis is also available on the Institute for Free Speech’s website. See Bradley A. Smith, Analysis of H.R. 1 (Part Two): Establishing a Campaign Speech Czar and Enabling Partisan Enforcement: An Altered FEC Structure Poses Risks to First Amendment Speech Rights, Institute for Free Speech (Jan. 31, 2019), at https://www.ifs.org/wp-content/uploads/2019/01/2019-01-31_IFS-Analysis_US_HR-1_Creating-A-Partisan-FEC.pdf.

[3] 518 U.S. 604 (1996) (lead opinion by Breyer, J.).

[4] Please note that § 6102 of H.R. 1 includes under subsection (b) a new § 326. Accordingly, all citations to §6102(b) include a reference to this proposed § 326. See, e.g., H.R. 1 § 6102(b) (i.e. § 326(b)(1)) (emphasis added).

[5] Id. (i.e. § 326(b)(2)) (emphasis added).

[6] Federal Election Commission v. Christian Coalition, 52 F. Supp. 2d 45 (D.D.C. 1999) (“joint venturers” standard); see also Clifton v. Federal Election Commission, 114 F.3d 1309 (1st Cir. 1997) (standard finding “coordination” where there was “any” oral communication between spender and candidate was unconstitutionally overbroad). See generally Bradley A. Smith, Super PACs and the Role of “Coordination” in Campaign Finance Law, 49 Willamette L. Rev. 603, 621-626 (2013).

[7] Federal Election Commission v. Wisconsin Right to Life, 551 U.S. 449 (2007).

[8] This analysis is also available on the Institute for Free Speech’s website. See Bradley A. Smith, Analysis of H.R. 1 (Part Three): New Restrictions Target Speech by All Groups Under the Guise of “Stopping Super PAC-Candidate Coordination,” Institute for Free Speech (Feb. 5, 2019), at https://www.ifs.org/wp-content/uploads/2019/02/2019-02-03_Smith-Analysis_US_HR-1_Coordination-Restrictions.pdf.

[9] Indeed, both Google and Facebook have been forced to stop accepting certain types of ads in both Maryland and Washington State as a result of laws and regulations recently passed in those jurisdictions. See Michael Dresser, Google no longer accepting state, local election ads in Maryland as result of new law, Baltimore Sun (Jun. 29, 2018), at https://www.baltimoresun.com/news/maryland/politics/bs-md-google-political-ads-20180629-story.html; Facebook to stop accepting campaign ads in Washington State, AdAge (Dec. 20, 2018), at https://adage.com/article/tech/facebook-stop-accepting-campaign-ads-washington-state/316066/.

[10] This analysis is also available on the Institute for Free Speech’s website. See Bradley A. Smith, Analysis of H.R. 1 (Part One): “For the People Act” Replete with Provisions for the Politicians, Institute for Free Speech (Jan. 23, 2019), at https://www.ifs.org/wp-content/uploads/2019/01/2019-01-23_IFS-Analysis_US_HR-1_DISCLOSE-Honest-Ads-And-Stand-By-Every-Ad.pdf.

[11] For a comprehensive examination of taxpayer-financed campaign programs and their record of failure at achieving goals set by their proponents, see Taxpayer-Financed Campaigns: A Costly and Failed Policy, Institute for Free Speech (Jul. 16, 2014), at https://www.ifs.org/wp-content/uploads/2014/07/2014-07-16_IFS-Policy-Primer_Taxpayer-Financed-Campaigns.pdf.

[12] See David Keating, H.R. 1’s Tax-Financing Program Could Increase Political Polarization, Institute for Free Speech (Jan. 17, 2019), at https://www.ifs.org/blog/h-r-1s-tax-financing-program-could-increase-political-polarization/.

[13] See Andrew B. Hall, How the Public Funding of Elections Increases Candidate Polarization, Harvard University (Aug. 13, 2014), at http://www.andrewbenjaminhall.com/Hall_publicfunding.pdf.

[14] Editorial Board, Taxpayer-funded hate, thanks to the city campaign-finance system, New York Post (Mar. 3, 2017), at http://nypost.com/2017/03/03/taxpayer-funded-hate-thanks-to-the-city-campaign-finance-system/.

[15] Josh Nathan-Kazis, Candidate Who Condemned ‘Greedy Jewish Landlords’ Faces Uphill Election Bid,” Forward (Sept. 12, 2017), at https://forward.com/news/382466/candidate-who-condemned-greedy-jewish-landlords-faces-uphill-election-bid/.

[16] See note 14, supra.

[17] Matt Nese and Tom Swanson, Issue Review: Clean Elections and Scandal: Case Studies from Maine, Arizona, and New York City, Institute for Free Speech (Aug. 14, 2013), at https://www.ifs.org/wp-content/uploads/2013/08/2013-08-05_Issue-Review_Swanson_Clean-Elections-Scandal-Case-Studies-From-Maine-Arizona-And-New-York-City.pdf.

[18] Id. at 36-37.

[19] See Matt Nese, Oregon H.B. 4076; Taxpayer-Financed Campaigns – A Failed and Costly Policy, Institute for Free Speech (Feb. 8, 2018), at https://www.ifs.org/wp-content/uploads/2018/02/2018-02-08_IFS-House-Rules-Committee-Comments_OR_HB-4076_Tax-Financing-Policy-Issues.pdf.

[20] Bob Young, Seattle candidate accused of defrauding first-in-nation democracy-voucher program, The Seattle Times (Aug. 17, 2017), at https://www.seattletimes.com/seattle-news/times-watchdog/seattle-candidate-accused-of-defrauding-democracy-voucher-program/. H.R. 1 creates a “My Voice” Voucher pilot program modeled after Seattle’s “Democracy Voucher” program. See H.R. 1 § 5101.

[21] Jason Farrell, Sean Parnell, & Brett Sullivan, Issue Review: Meet the New Legislature, Same as the Old Legislature: A quantitative analysis of the Connecticut Citizens’ Election Program, Institute for Free Speech (Oct. 22, 2012), at https://www.ifs.org/wp-content/uploads/2012/11/Connecticut-Clean-Elections.pdf.

[22] Matt Nese and Luke Wachob, Issue Analysis No. 1: Do Taxpayer-Funded Campaigns Reduce Lobbyist and Special Interest Influence?, Institute for Free Speech (Aug. 14, 2013), at https://www.ifs.org/wp-content/uploads/2013/08/Issue-Analysis-1.pdf.

[23] Alex Cordell, Issue Analysis No. 2: Legislator Occupations – Change or Status Quo After Tax-Funded Campaigns?, Institute for Free Speech (Jun. 28, 2017), at https://www.ifs.org/wp-content/uploads/2013/08/2017-06-28_Issue-Analysis-2_Cordell_Legislator-Occupations-Change-Or-Status-Quo-After-Tax-Funded-Campaigns.pdf.

[24] Alex Cordell, Issue Analysis No. 3: Do Tax-Funded Campaigns Increase the Percentage of Women in State Legislatures?, Institute for Free Speech (Jul. 11, 2017), at https://www.ifs.org/wp-content/uploads/2013/08/2017-07-11_Issue-Analysis-3_Cordell_Do-Tax-Funded-Campaigns-Increase-The-Percentage-Of-Women-In-State-Legislatures.pdf.

[25] Matt Nese and Luke Wachob, Issue Analysis No. 4: Do Taxpayer-Funded Campaigns Actually Save Taxpayer Dollars?, Institute for Free Speech (Nov. 1, 2013), at https://www.ifs.org/wp-content/uploads/2013/11/2013-11-19_Issue-Analysis-4_Do-Taxpayer-Funded-Campaign-Actually-Save-Taxpayer-Dollars.pdf.

[26] Luke Wachob, Issue Analysis No. 8: Do Taxpayer-Funded Campaigns Increase Voter Turnout?, Institute for Free Speech (Dec. 11, 2013), at https://www.ifs.org/wp-content/uploads/2013/12/2013-12-03_Issue-Analysis-8_Do-Taxpayer-Funded-Campaign-Increase-Voter-Turnout.pdf.

[27] Joe Albanese, Issue Analysis No. 10: Do Taxpayer-Funded Campaigns Increase Political Competitiveness?, Institute for Free Speech (Jun. 7, 2017), at https://www.ifs.org/wp-content/uploads/2017/06/2017-06-05_Issue-Analysis-10_Albanese_Do-Taxpayer-Funded-Campaigns-Increase-Political-Competitiveness.pdf.

Brad Smith

Brad Smith