This piece originally appeared in Washington Examiner on May 13, 2021.
How do you defend a bill that would subsidize politicians’ campaigns, expose people to harassment for their beliefs, and impose a partisan takeover of the agency that oversees campaign funding and political speech?
Not very well.
At least, that is, if this week’s meeting of the Senate Rules Committee is any indication. Democratic sponsors of the bill continued to dismiss First Amendment concerns in their proposal to overhaul campaign finance and speech laws. But Republicans finally got an opportunity to confront them.
The hearing left one wondering whether the sponsors even understand their bill or the history of government efforts to control political speech. Either way, S. 1 needs to be sent back to the drawing board. Again.
Democrats defeated multiple amendments that would have diverted funds designated for campaigns to worthier public issues such as the opioid crisis and rural hospitals. Sen. Ted Cruz pointed out that if S. 1 were in effect, he would have received a whopping $24 million in taxpayer funds in the last quarter alone. Democrats argued those funds are not “taxpayer” dollars because they come from fines, but whatever you call it, the government’s money belongs to the people. Giving it to politicians is unpopular and wasteful.
Also controversial were S. 1’s unprecedented requirements that nonprofit organizations expose their supporters when communicating with the public about legislation. Republicans asked whether this means Democrats now oppose NAACP v. Alabama, the 1958 Supreme Court ruling that unanimously affirmed a First Amendment right to organize into groups without being monitored by the government.
Sens. Jon Ossoff and Angus King insisted there was no comparison because S. 1 targets groups engaged in “campaign-related” speech. That vague term, however, would imperil groups quite similar to the 1950s NAACP. The NAACP may not have run TV ads telling people how to vote back then, but it was instrumental in pressuring government action, reforming the law, and influencing public opinion on civil rights. S. 1 targets exactly that kind of activism.
As the American Civil Liberties Union has noted, S. 1’s vague and broad definition of “campaign-related” speech would regulate advocacy far removed from elections. That includes ads about “immigrants’ rights, voting rights or reproductive freedom if the communication merely mentions a candidate for public office.” The bill could force a group to expose its supporters over an ad “criticizing House Speaker Nancy Pelosi (D-Calif.) for supporting immigration reform or criticizing Sen. Ted Cruz (R-Tex.) for opposing the Equality Act.” In short, S. 1 would treat nearly any discussion of public issues like a campaign ad. Democrats will have to overturn or ignore NAACP v. Alabama to do so.
Republicans also hammered the majority for pushing a partisan takeover of the Federal Election Commission. Democrats charged that the six-member FEC is fundamentally broken because proposed actions can fail on a partisan 3-3 tie vote. The committee then killed over two dozen amendments to the bill on partisan 9-9 tie votes. And they had no answer when confronted with the example of the Senate Ethics Committee, another body with equal membership from both parties to avoid partisan abuse or its appearance.
King argued that S. 1’s five-member FEC would not be partisan because one commissioner must be independent of the two major parties. King knows better than most how “independents” can shift the balance of power, however. After all, there are more Republicans than Democrats in the Senate, but the chamber is run by the Democrats thanks to King and Sen. Bernie Sanders, two “independent” members, plus the tiebreaking vote of Vice President Kamala Harris.
A five-member FEC would tilt the same way. Do the sponsors truly believe a president cannot find one “independent” in the entire country who would vote for their interests? For that matter, do they really think the NAACP of the 1950s was not engaged in political action to influence government? Or that the funds of the U.S. government do not belong to the people?
Whether they are sincere and deluded or just plain dishonest, Tuesday revealed that S. 1’s sponsors can’t keep their talking points straight when it comes to the bill’s assault on free speech. They should make sure they understand their proposal before ramming it through.