Former federal election official delivers dire warning about H.R. 1
Published April 1, 2021
By Mitch Kokai
When it comes to defending free speech against attacks from the political left, the fight against H.R. 1 amounts to “a hill to die on.” That’s the assessment a former Federal Election Commission chairman offered recently to an audience in North Carolina.
H.R. 1’s official name is the For The People Act of 2021. The U.S. House of Representatives approved the 800-page bill earlier this month, 220-210. All but one voting Democrat supported the measure. Every Republican opposed it.
The measure would nationalize much of the election process. It would force states to adopt federal government standards for same-day registration, early voting, automatic voter registration, and other Democratic Party election-law priorities.
But that’s not what’s attracting the most attention from Bradley Smith. Chairman of the FEC back in 2004, Smith also founded and now chairs the Institute for Free Speech.
“Getting ignored in all of the attention on the federalization of elections and all the bad practices that would be mandated are equally important First Amendment issues,” Smith said during a March 15 online presentation for the John Locke Foundation. “This bill — it could be said — is nothing less than a blatant attempt to silence political dissent.”
Smith offered specifics. “H.R. 1 would unconstitutionally regulate any speech that mentions a federal candidate or elected official at any time, under the vague standard of whether the speech promotes, attacks, supports, or opposes the candidate or official,” he said. “This standard is all but impossible to understand and would likely regulate any mention of an elected official who hasn’t yet announced their retirement.”
Mainstream media outlets would enjoy an exemption from new restrictions. H.R. 1 would give those outlets “an ever greater control over public discourse and messaging,” Smith warns. “As we saw in the last several years, the media has pretty much abandoned all pretense of objectivity in reporting on public affairs.”
H.R. 1 creates a new bureaucratic burden for groups that play an active role in public policy debates. “The bill would force groups to file burdensome and duplicate reports with the FEC if they sponsor any ads that are deemed to promote, attack, support, or oppose the president or members of Congress in an attempt to persuade those officials to support or oppose policy issues,” Smith said.
A new government-mandated form generates particular concerns. “It would compel groups to declare on new publicly filed ‘campaign-related disbursement’ reports whether their ads are ‘in support of or opposition to’ the elected official mentioned, even if the ads are neither,” Smith said. Groups would have to submit those forms even for ads that simply mention or urge people to contact an officeholder.
H.R. 1 attacks donor privacy. “It would force groups to publicly identify their donors on reports for issue ads and on the face of the ads themselves,” Smith said.
This provision would subject these donors to harassment campaigns and the worst parts of “our boycott and blacklist culture,” Smith said. “In many instances, the donors being identified will have provided no funding for the ads in question. They funded the organization for other purposes.”
New unwarranted scrutiny is bound to have an impact. “Faced with this prospect of being inaccurately associated with what by law would be considered ‘campaign ads’ — even if they’re not campaign ads — in FEC reports and disclaimers, many donors will simply stop giving to these nonprofits,” Smith said.
Groups engaged in policy debates might also choose to self-censor, he added. The impact could extend beyond policy organizations. Grant makers would be forced to disclose donors publicly if government overseers decide there’s “reason to know” that their money could end up funding future “campaign-related disbursements.”
“This vague and subjective new standard will increase the legal issues and the cost of vetting grants, and many groups are simply going to stop making grants,” Smith predicts.
Even those of us who have nothing to do with political ads and policy debates should be concerned.
“All of this is bad for democracy, of course,” Smith said. “It focuses attention on the individuals and the donors associated with the sponsoring organizations, rather than on messages on public affairs, the pluses and minuses of legislation. It exacerbates the politics of personal destruction, and it further coarsens political discourse.”
Overseeing all these new restrictions, the FEC itself would undergo disturbing changes. It would lose its traditional bipartisan leadership.
“This agency would be controlled by appointees of the Biden administration through at least the 2026 midterms,” Smith said. “So we have again a sense of what some of the goal is here.”
“it’s not extreme in this scenario to say that this is the most far-reaching effort that we’ve ever seen to insulate a majority from political challenge,” he added. “It must be defeated.”
That’s why Smith is employing new rhetoric. “I’ve been battling on these election issues and free-speech issues for a long time,” he said. “There’s an expression I’ve never used before but I would use in connection with this bill. H.R. 1 is a hill to die on.”
It’s a serious warning for all of us interested in free and fair elections, not to mention the fundamental rights spelled out in the First Amendment.
Mitch Kokai is senior political analyst for the John Locke Foundation.