Analysis: H.R. 1’s Speech Provisions are Unconstitutional and Harmful to Democracy

February 22, 2021   •  By IFS Staff   •  
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Washington, DC – The Institute for Free Speech published an analysis today of three major sections of H.R. 1 that would trample on First Amendment rights. The provisions would invade the privacy of nonprofits and their supporters, discourage online political speech, and compel groups to parrot long, government-mandated messages in their communications. The bill is expected to receive a House floor vote the week of March 1.

“Calling this bill the ‘For the People Act’ is Orwellian. It would give politicians more power while suppressing the speech of the people,” said Institute for Free Speech President David Keating. “A more accurate title would be the ‘For the Politicians Act.'”

To read the analysis, click here, or go to: https://www.ifs.org/wp-content/uploads/2021/02/2021-02-22_IFS-Analysis_HR-1_DISCLOSE-Honest-Ads-And-Stand-By-Every-Ad.pdf.

Authored by Senior Fellow Eric Wang, the Institute’s analysis finds that H.R. 1 would foist enormous regulatory compliance costs and liability risks on Americans who speak about government or join together in support of a cause. It would create a complex web of overlapping regulations by slapping together several pre-existing bills rather than consolidating them into one coherent proposal. The result would be a boon for politicians and campaign finance lawyers, but a nightmare for Americans trying to exercise their First Amendment rights.

“Buried in H.R. 1’s nearly 800 pages is a censor’s wish list of new burdens on speech and donor privacy. It proposes a democracy where civic engagement is punished and where fewer people have a voice in our government, our laws, and public life,” said Wang.

Specifically, the Institute’s analysis finds that H.R. 1 would:

      • Unconstitutionally regulate speech that mentions a federal candidate or elected official at any time under a vague, subjective, and dangerously broad “PASO” standard that asks whether the speech “promotes,” “attacks,” “supports,” or “opposes” the candidate or official. That standard is impossible to understand and would likely regulate any mention of an elected official who hasn’t announced their retirement.
      • Compel groups to declare on new, publicly filed “campaign-related disbursement” reports that their ads are either “in support of or in opposition” to the elected official mentioned, even if their ads are neither. This mandate forces organizations to declare their allegiance or opposition to public officials, provides false information to the public, and is unconstitutional.
      • Force groups to publicly identify certain donors on these reports for issue ads and on the face of the ads themselves. In many instances, the donors being identified will have provided no funding for the ads. Faced with public exposure for messages they may not support, many Americans will cease giving to nonprofits altogether.
      • Subject far more issue ads to lengthy disclaimer requirements, which will coerce groups into truncating their 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’ message, exacerbating the politics of personal destruction and further coarsening political discourse.
      • For the first time ever, subject groups that sponsor communications about judicial nominees to burdensome campaign finance reporting, donor exposure, and disclaimer requirements without any sound policy justification or recognized constitutional basis for doing so.
      • Force organizations that make grants to file reports and publicly identify their own donors if they have “reason to know” that a donee entity has made or will make so-called “campaign-related disbursements.”
      • Increase regulation of the online speech of American citizens while purporting (and failing) to address the threat of Russian propaganda.
      • Expand the universe of regulated online political speech beyond paid advertising to include, apparently, communications on groups’ or individuals’ own websites, social media platforms, and e-mail messages.
      • Regulate speech about legislative issues by expanding the definition of “electioneering communications” – historically limited to large-scale TV and radio campaigns targeted to the electorate in a campaign for office – to include online advertising, even if the ads are not targeted in any way at a relevant electorate.

For the second Congress in a row, H.R. 1 was introduced by Congressman John Sarbanes (D-MD) as the first bill in the House of Representatives. A companion bill, S. 1, was announced in the Senate but is not yet available.

H.R. 1 contains threats to free political speech in addition to those discussed in the Institute’s analysis. On February 9, IFS Chairman Bradley A. Smith was one of nine former FEC Commissioners to warn Congressional leaders that H.R. 1’s radical transformation of the Federal Election Commission would “destroy” its bipartisan structure and damage Americans’ faith in the fairness of elections. In 2019, the Institute published additional analyses concerning the bill’s provisions relating to the FEC and “coordination” regulations, as well as a series of blog posts exploring problems with its proposed taxpayer-financed campaign program for congressional candidates. Those portions of the bill are largely unchanged.

To read the Institute’s analysis, click here. To access all of the Institute’s resources on H.R. 1 and S. 1, click 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

https://www.ifs.org/author/ccp-staff/

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