Members of Congress are expected to vote this week on H.R. 1, the For the People Act of 2019. There is a lot to like about the bill.
To begin, its aim is to strengthen and expand participation in our democracy. We are at a crucial moment where our democratic institutions are not adequately protecting the will of the people, and we strongly support the goals of H.R. 1 to correct these infirmities.
But, as we detail in a recent letter to Congress, there are provisions within the bill that, while well-intended, are overly broad and vague. If enacted, they would violate the First Amendment rights of American citizens and public interest organizations. Unless those provisions are fixed, we will oppose H.R. 1 and recommend that members of Congress vote against it.
Let’s first begin with what’s good with the legislation. H.R. 1 includes numerous federal protections for the right to vote, which has been under laser-like assault since the election of our first African-American president. The ACLU has long-supported many of the proposals H.R. 1 seeks to advance, especially the provisions aimed at unobstructed and equal access to voting.
In this regard, H.R. 1 addresses several of our top federal voting rights priorities, including:
- Reaffirming Congress’ Commitment to Restore the Voting Rights Act: We commend Congress for reaffirming its commitment in H.R. 1 to restore the protections of the Voting Rights Act.
- Restoring Voting Rights for Those Formerly Incarcerated: The inclusion of The Democracy Restoration Act in H.R. 1 is a powerful expression by Congress that the right to vote should be reinstated to the formerly incarcerated.
- Supporting the U.S. Election Assistance Commission: A fully funded, empowered EAC is crucial to supporting state and local election administrators in the performance of their responsibilities to run fair and accessible elections.
- Redistricting Reform: To achieve the constitutional principles of equal representation, redistricting reform must be enacted at the federal level.
- Stopping Unfair Purging of the Voter Rolls: The SAVE VOTERS Act corrects a recent Supreme Court decision by clarifying that the National Voter Registration Act does not permit states to remove voters from the rolls simply for failing to vote for a period of time.
- Voting Modernization: H.R. 1 would enact a series of proposals that ensure more Americans who want to cast a ballot are able to do so. These common sense proposals include early voting, no excuse absentee voting, same-day voter registration, online voter registration, and automatic voter registration.
In addition to voting rights, we also support a voluntary system of public campaign financing that would provide sufficient support for all eligible candidates to mount viable campaigns. H.R. 1 would take important steps to creating just that, including by matching small dollar contributions to federal candidates’ campaigns at 600 percent. The ACLU has long championed and fought for these reforms, and we will continue to work with Congress to design legislation that achieves them.
But even with all the good H.R. 1 would do, if enacted in its current form, it would unconstitutionally infringe on the speech and associational rights of many public interest organizations and American citizens. It is incumbent upon the drafters of H.R. 1 to correct these issues.
Take for instance the DISCLOSE Act, which is part of H.R. 1 and is intended to create fairer elections through a more informed electorate. We applaud this goal and support requiring organizations to report spending for public communications, such as TV ads, that expressly call for the election or defeat of a candidate for office.
But, as currently drafted, the DISCLOSE Act would go beyond that. It would regulate communications that merely mention a candidate for office if the election is near. It would also regulate communications that “support, promote, attack, or oppose” the election of a candidate. These standards are unclear and entirely subjective, which will lead to confusion and, ultimately, less speech.
Consider, for example, a California-based organization placing an ad describing a “crisis at the Southern border” and criticizing Sen. Kamala Harris (D-Calif.) for failing to support President Trump’s efforts to build a wall. That organization might then have to disclose all of its donors that gave above a certain amount of money because the ad “opposes” Senator Harris’ positions, and, therefore, it may be found to “oppose” her election.
Or consider a different ad from a different organization describing immigration as the life blood of the United States and extolling Sen. Harris’ refusal to support building a wall. The problem is the same. Both of these organizations are expressing their opinion about immigration. The DISCLOSE Act could treat them as though they are expressing their opinions about the election of Sen. Harris.
This is further compounded by another provision, the Stand by Every Ad Act. This provision would require certain organizations to display their top five donors on every “campaign-related” video ad and to state their top two donors with every “campaign-related” audio ad.
Let’s play this one out.
Consider a multi-issue organization like the ACLU. Our work, like the work of other multi-issue organizations, often brings together odd bedfellows.
For example, someone who might donate to the ACLU because of our advocacy on criminal justice reform, an issue that appeals to both conservative- and liberal-leaning reformers, may not necessarily support our work on other issues. However, if that individual’s donation were sizable enough to earn them a spot on ACLU’s top five donors’ list, their name would, by law, need to be prominently displayed on every “campaign-related” ad regardless of whether they are aware of the ad — or even support it.
The DISCLOSE Act and Stand by Every Ad Act together will have one of two pernicious effects on affected organizations. First, donors could choose not to give to organizations, even if they support their messages, or could be forced to give less than they otherwise might. Second, labor unions and advocacy groups like Planned Parenthood may choose to self-censor out of fear of crossing the DISCLOSE Act’s vaguely-defined line between what constitutes "campaign-related" communications and pure issue advocacy that refers to candidates for office.
If organizations do choose to speak, they may find themselves subject to onerous and intrusive disclosure requirements, including publishing the names and addresses of donors regardless of whether that donor supported or even knew about the communications that triggered the publication of their name. This could be especially burdensome for small organizations that cannot afford the compliance costs.
Other organizations may simply refuse to breach the trust that donors expecting anonymity have placed in them. Under either of these results, our public discourse is less vibrant, less diverse, and less informed. In short, the First Amendment loses.
There are other provisions that raise First Amendment concerns as well, and we detail them in the letter we sent to the House Rules Committee. The good news is, as our letter demonstrates, all of this can be fixed through targeted amendments aimed at tightening the broad and vague language in these provisions and addressing the First Amendment concerns. We continue to urge the House to make these necessary changes.