Analysis: H.R. 1 Restricts Speech about Public Affairs Under the Guise of Stopping ‘Coordination’

Confusing regulations and a partisan FEC combine to put speakers in peril

February 5, 2019   •  By IFS Staff   •  
Default Article

Alexandria, VA – The Institute for Free Speech today released part three of its analysis of H.R. 1, also known as the “For the People Act of 2019.” This part of the analysis finds that H.R. 1 would place sweeping new limitations on the speech of all groups that discuss public affairs.

“H.R. 1’s restrictions on speech about government and public policy often make little or no sense and infringe on both the right to speak and the right to hear others. Rather than empowering Americans to play a greater role in democracy, the legislation would limit public discussion of the issues of the day, leaving citizens less informed and engaged,” said Institute for Free Speech Chairman Bradley A. Smith.

To read the analysis, click here, or go to: https://www.ifs.org/wp-content/uploads/2019/02/2019-02-03_Smith-Analysis_US_HR-1_Coordination-Restrictions.pdf.

Among other outcomes, H.R. 1’s restrictions on independent speech would:

  • Create regulations and penalties that would apply to every group of American citizens engaged in public discussion of issues and elections, not just super PACs, despite the section’s misleading title, “Stopping Super PAC-Candidate Coordination.”
  • Silence speakers both literally – through direct prohibitions on speaking – and also through fear, known as chill.
  • Prohibit many communications about legislation that are made routinely today and that no Congress has attempted to outlaw since the Alien and Sedition Acts. 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.
  • 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.
  • Empower a newly partisan Federal Election Commission to interpret and enforce this radical new coordination standard. If the FEC decides that certain communications are “coordinated,” the agency could impose hefty fines on the organization.
  • Regulate many groups as “coordinated spenders” and ban them from speaking, in direct contradiction of Supreme Court precedent, even if they don’t actually coordinate their spending.
  • Repeal common sense exceptions to coordinated activity recognized under current law, with the effect of suppressing publication of useful information.
  • Eliminate 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. In particular, this will negatively impact new and smaller grassroots organizations at the expense of established, bigger spending actors.

“These limitations would reach far beyond campaign speech to regulate discussion of legislative issues and public affairs,” the analysis states. “The restrictions also extend far beyond ‘super PACs’ to apply to literally any civic or membership organization that engages in such discussion. 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 Institute for Free Speech previously released two analyses of other speech-chilling provisions of H.R. 1. The Institute’s first analysis concerns sections of the legislation that would regulate political speech on the Internet, violate the privacy of advocacy groups and their supporters, and compel speakers to include lengthy government-mandated messages in their communications. That analysis is available here. The Institute’s second analysis explains how H.R. 1 would transform the bipartisan Federal Election Commission into a partisan agency under the control of the president. That analysis is available here.

About the Institute for Free Speech

The Institute for Free Speech is a nonpartisan, nonprofit 501(c)(3) organization that promotes and defends the First Amendment rights to freely speak, assemble, publish, and petition the government. Originally known as the Center for Competitive Politics, it was founded in 2005 by Bradley A. Smith, a former Chairman of the Federal Election Commission. The Institute is the nation’s largest organization dedicated solely to protecting First Amendment political rights.

IFS Staff

IFS Staff