H.R. 1: For the People or For the Politicians?—David Keating on How H.R. 1 Curtails Free Speech
Last week, the U.S. House of Representatives approved H.R. 1, the Democrats’ sweeping election reform package. While many have focused on how the bill changes voting and voter registration, the bill also has major implications for free speech—which have largely gone unnoticed.
Critics of the bill say that the disclosure rules open the door for intimidation and harassment of Americans for their political beliefs. Some also say that it subsidizes political campaigning with taxpayer money and thrusts piles of paperwork upon Americans who want to criticize elected officials.
To find out what’s really hidden in the weeds of this nearly 800-page bill, I decided to sit down with David Keating, president of the Institute for Free Speech.
“It says ‘For the People Act,’ but … a more accurate title would be ‘For the Politicians Act,’” Keating argues.
Jan Jekielek: David Keating, such a pleasure to have you on American Thought Leaders.
David Keating: Great to be here. Thanks for the invitation.
Mr. Jekielek: David, you’ve been with the Institute for Free Speech for nearly a decade. We were talking offline about H.R.1, this new legislation, the For the People Act of 2021. We actually have an article that goes into details, the key things you need to know about H.R.1, by Masooma Haq. We’re going to use that as a companion article to this interview. You’re seeing a lot of free speech issues here. Tell me what you’re seeing?
Mr. Keating: It’s a huge bill and about half of the bill relates to our ability to speak out about government or candidates. When you consider that the bill is 800 pages, that means it’s 400 pages of new regulations about our ability to speak out about government. It’s a nightmare actually.
At the Institute for Free Speech, we have a whole team of campaign finance experts, and it literally took us well over a week to figure out what this bill would do. That’s us—we’re experts. Imagine the average person trying to start a grassroots group to say something about their government, whether it’s taking out a few Facebook ads or a billboard, I don’t think there’s any hope they’d be able to figure it out. I think that’s a real problem. If we set up a system of government in the United States where you need to go hire a lawyer before you can speak out, that’s a ridiculous situation.
Mr. Jekielek: What would you say is one of the key provisions that really jumped out at you?
Mr. Keating: The thing that really jumps out at me is at first the title, because it says For the People Act, but I actually think a better title, a more accurate title would be For the Politicians Act. What it does is subsidize the speech of people who want to run for Congress, at least the House of Representatives, and it makes it harder for everyone else to speak through setting up a maze of regulations requiring people to fill out a blizzard of forms, and that is something that I think is the big problem.
Starting from the top, essentially, the bill would define any speech that’s published about a member of Congress or a candidate at any time of the year as a campaign-related activity, as if it has something to do with their reelection. In fact, we may just be upset about a bill before Congress, like the one we’re talking about right now. So if we were to actually try to put out some information, whether we buy an ad or publish something on our website, we’d find ourselves having to fill out a bunch of new forms with the government.
If you look at the First Amendment, it says, “Congress shall make no law … abridging the freedom of speech,” and many other protections as well, of course. So I think, first of all, it’s a bad idea to regulate this activity in the first place. We have a free speech right, we should be able to exercise it without filling out a bunch of forms that make the tax forms look simple by comparison. Second, if anything, we should be encouraging people to form groups and speak out about government, and this bill does the exact opposite.
Mr. Jekielek: Basically, you’re saying, if a congressional member says something and you criticize it, you’re required to do some bureaucratic function in order to be able to be allowed to do that. Am I reading you right?
Mr. Keating: Yes. There are a couple of things. First is, there’s a new part of the bill that they would like to make [to] become law called the DISCLOSE Act [Democracy Is Strengthened by Casting Light On Spending in Elections Act]. Really, I like to call it the “Expose Act” because what it would do is, if you publish any sort of paid communications, so that could be a mailing, could be some internet ads, could be TV or radio ads, basically anything where you pay to publish anything, and that communication mentions a member of Congress’s name, it could be interpreted, the way the bills written, as somehow being a regulated activity.
The way the law works now is, if you publish an ad and you urge people to vote for or against a candidate, or you do certain communications very close to an election, within 60 days to an election, then that’s regulated. But if it doesn’t do that, today, then basically you can say anything you want about a bill that’s pending in Congress. But the way H.R.1 is written, if you mentioned the name of a member of Congress and you refer to a bill, then I think you’re probably facing new regulations under this bill, and they’re pretty complicated ones. So that’s issue one.
One in many parts of the bill is that it would repeal what’s known as the internet exemption. The Federal Election Commission in 2006 did an excellent regulation. It was supported across the board by liberals and conservatives, Republicans and Democrats. What the internet exemption does is if you have an organization and you have a website or social media, you post on YouTube, if you do those postings, then you don’t have to report that to the government.
H.R.1 would effectively repeal the internet exemption. If your organization were to post information online without paying for an ad somewhere else, then that would be swept up in this new form of regulation. So organizations might have to figure out, what was the cost of that Tweet we sent today, what was the cost of that Facebook posting, and report all of these to the Federal Election Commission. Instead of speaking, which is what we need to do about government, we’d be sitting around filling out a bunch of forms that really are pretty useless.
Another thing that’s a key measure of concern is about how the bill would actually force organizations to report misinformation about their contributors, for example. The new parts of the bill that would require more disclosure of contributors are not very well tailored at all. So let’s say there’s an advertisement, you have to report that advertisement where you’re urging a member of Congress to vote for or against the bill, and then you have to decide, which donors are we reporting?
The bill would basically say, all the donors over a certain dollar threshold, whether or not those donors gave for the advertisement. In fact, some of the donors may have specifically given for another program that your organization is working on, yet they would be reported as somehow being associated with that advertisement. So that’s disinformation—one. It would be misleading the people reading the report.
The second problem is that many of these ads would require you to list the donors on the ads themselves. Again, you’d have the same problem of donors being associated with ads that they may not have even seen or may not even agree with.
When you join an organization, especially a broad based organization, like a chamber of commerce, or a business, or a trade association of any kind, or even if you’re joining an environmental group or a taxpayers group, you’re probably not going to agree with the group 100 percent of the time. You may agree with it 95 percent of the time, but it would be crazy if the government’s requiring you to be reported on an ad that you actually didn’t agree with, yet the bill would do exactly that.
Another crazy thing this reporting would do is whenever you mentioned a member of Congress in the ad, you would have to report to the government, whether your organization supported or opposed that member of Congress, even though you’re not taking any position at all. So that seems like a strange thing to force an organization to do.
Mr. Jekielek: Fascinating. The other thing that immediately comes to mind, it’s something we’ve discussed extensively on this show, is that this opens up the door to cancel culture functioning, doesn’t it?
Mr. Keating: Exactly. That’s why I call it, instead of the DISCLOSE Act, the “Expose Act.” Democratic Leader Chuck Schumer, years ago, said [that] the whole purpose of this was to intimidate people from speaking, this kind of exposure. So let’s say there’s a bill up before Congress and there are people that either support it or disagree with it.
The members of Congress would have a complete list of the significant donors to the organization backing that communication. If they don’t like the organization and what they’re saying or what they’re standing for, they’ve got a whole enemies list right there. They or their allies can call on people to take action against these people, maybe urge them to get fired, maybe urge them to boycott businesses they work at, things of that nature, or maybe go protest outside their homes.
I don’t think it’s a proper role of government to give people, basically, a list for people to harass or threaten just because they don’t agree with you on a particular issue. The Supreme Court has only made one exception, just one exception, for listing donors to co-op causes, and that’s in the election context. So if you give to a candidate for federal office, if you give to a political party or political action committee, the Supreme Court said, that kind of disclosure, we’re going to make an exception under the First Amendment. The Supreme Court has yet to say any other reason the government could use to invade our privacy.
All you need to do is think around the world today, right now. In Hong Kong, the Chinese government, obviously, would love to have a list of everyone supporting the protesters. In Russia, Putin would love to have a list of everyone who opposes his regime. All you have to do is think of any authoritarian government or anywhere where people are corrupt and abusing their power—they love to have a list of their political enemies. We’ve even seen this here in the United States, in some local governments, in Arizona, Ohio, and elsewhere.
So I think there’s an important distinction to be made between disclosing the names of people supporting a candidate—and there there are even problems with that—[and] supporting a cause. This bill goes way beyond the Supreme Court’s line drawn.
Mr. Jekielek: One of the critiques that I’ve heard about this bill, specifically, is that typical American citizens’ tax dollars could be used effectively to subsidize campaign speech which they absolutely don’t agree with, and that some people are incredibly irate about this question. Tell me about what you’re seeing.
Mr. Keating: Sure. The Senate bill text isn’t out yet, at least not as we’re recording this. The House bill would set up a public financing scheme for congressional races. And basically what would happen is, for the first $200 of a contribution to a candidate, the government would match each dollar with $6 of public funds. So if somebody gave $200 to a candidate, that would become a $1200 subsidy, so the $200 would become worth $1400.
This has a number of effects which I think would probably drive polarization even further. One thing that we found is that getting small donors worked up, you tend to want to emphasize fringe issues that make people’s blood boil over, so you can get those contributions. And then if you can say, not only will you help our campaign, but you’ll get $6 from the government for every dollar you give, that will incent people to give it even more for that.
But you have to think of the flip side of this, which means money that the government is spending on other things, whether it’s battling the pandemic or something else, is going to instead be used for subsidizing political campaigns by politicians, and probably half the time, you’re going to hate how your money or the public’s money is being used. There’s no First Amendment right, at least, the court hasn’t found one yet, where you can say, “I don’t want my tax dollars being used to subsidize speech [that] I don’t agree with.” The government does speak on things, so there probably wouldn’t be a challenge for that.
That said, I don’t know that people would be very happy with spending their tax dollars that way. The other thing to keep in mind is [that] liberals, I think, and Democrats forget that this money would be used or could be used to subsidize hate speech, racist speech, anti-Semitic speech. In fact, we’ve seen exactly that happen where this system has been tried and the strange thing is, this system has only been tried in one place in the United States and that’s New York City.
In one of the recent races for New York City Council, there was a guy who was anti-Semitic, he took over $100,000 in city funds and ran ads criticizing, literally, “greedy Jewish landlords,” in the terms of his campaign. These are not my words, these were the candidate’s words. This kind of speech would be subsidized.
If Congress tried to enact an anti-hate speech provision of this bill, I’m sure the Supreme Court would say, you can’t do that. The government can’t discriminate on the basis of viewpoint. So all viewpoints, no matter how horrific, would be subsidized by this legislation.
Mr. Jekielek: That’s pretty fascinating. One of the things that caught my eye, it’s number 28 in Masooma’s article that I referenced earlier. It’s these changes to the composition of the Federal Elections Commission and opening up the door to politicization, potentially. Do you have any thoughts on this?
Mr. Keating: Yes, that’s another huge problem with this bill. In the 1970s, we created the modern campaign finance laws called the Federal Election Campaign Act. That campaign act also set up the Federal Election Commission. When Congress set up the Federal Election Commission, they decided to make it a six-member body, which is unusual in government—six members, and no more than three could be either of the Republican or the Democratic party or any other party that comes along later. That’s to prevent a Nixonian situation where they would use the power of the government to go after their political enemies.
Now, this could be very effective. If you want the FEC to go after your political enemies, the bill would set up the FEC with five members and the president would essentially have power to name a controlling majority of the Federal Election Commission.
So a future president, and I’m not saying President Biden would do any such thing, but I think we can count on some future president doing such a thing, which is to use the FEC as a tool to make it tough for his political opponents to gain ground either in the Congress or in that president’s reelection bid.
Mr. Jekielek: What could the FEC actually do, if it were to have this kind of power?
Mr. Keating: It can mount an investigation at any time. It can announce findings. It can announce that a candidate has violated a particular part of the campaign act. In every campaign, we always hear people worrying about the October surprise that might come up. What better way to have an October surprise than to have a majority of the Federal Election Commission. You could have October surprises coming up in many swing districts around the country, or many swing states for the presidential race, or many swing Senate seats.
Surprise, surprise—we’ve done an investigation and we found this particular Republican candidate or Democratic candidate, depending on who’s in power, seems to have some violations here. We’re recommending a further investigation or this huge fine. We’re telling them to stop violating the law. That sort of action could be the difference between winning and losing in a race. People who say they’re worried about the credibility of our elections in our campaigns—what better way to undercut the credibility than to have partisan enforcement of the campaign laws?
Mr. Jekielek: Tell me a bit about the rules related to the actual advertising, which it would add in. We noted that as well.
Mr. Keating: A lot of the disclaimers now, people are probably most familiar with the disclaimers the candidates do where they say, “I’m John Smith, and I approve this message.” And then you hear the rest of the message. If you run an organization, the disclaimers today are already pretty bad, but this bill would make them even worse, because it would require that you add more information.
A lot of the information is just bureaucratic nonsense. You have to say paid for by the name of the organization, and then you have to name the organization responsible for the content of this advertising, and then you need to list your top donors. When all is said and done, the audio disclaimer on the audio ads would easily run 18 seconds long.
Now a lot of the advertising today is actually getting shorter rather than longer because of the internet and shorter attention spans as Americans. So it’s very common to see pre-roll ads on podcasts and elsewhere of 15 seconds. So how do you take 18 seconds of disclaimer and fit them into a short ad? The answer is you can’t. There may be some exceptions, but it doesn’t roll it back by enough to allow people to really use these advertising methods that are becoming more common today.
Mr. Jekielek: So in this case, you’re arguing that the people with the big money behind them would be the winners?
Mr. Keating: Yes, that’s unfortunately the case. They’re the ones that can afford to hire the lawyers in the first place. Actually what you would see accelerating as a trend is the wealthy and maybe the big corporations would become even more powerful. We’ve already seen that Jeff Bezos, for example, now owns the Washington Post.
I would think many very wealthy people would seek to own more newspapers and other forms of media entities. And the reason why is, exempt from this law, as it should be, are any media organizations. So the answer is, if you’re rich and wealthy, go out there and control a media organization and then you can say pretty much whatever you want on that platform, and you can actually coordinate as much as you want with the candidates and not report it to the government.
Now, I’m not saying these news organizations do that. But hundreds of years ago, the newspapers in the United States used to be party organs. Literally, there would be the equivalent of a Republican newspaper and a Democratic newspaper. Now, it wasn’t owned by the party, but it was owned by people that were pretty close to the party. They hoped that when the right people got in power, then the newspapers would get advertising from the state or local government.
We could see the same sort of thing happen in the future. In fact, a lot of people would argue that a lot of our news media outlets are becoming more partisan today than they were 20 or 30 years ago. This bill would only accelerate that trend in terms of the ownership.
Mr. Jekielek: Let’s ask the big question. Do you think it can pass?
Mr. Keating: Well, it can pass. I don’t think it will in this Congress. It really comes down to whether the Democrats in the Senate decided to change the filibuster rules. I’m not sure it could pass even if they did that, because they would need to get 50 votes and then ask the vice president to cast the tiebreaker. I’m not sure there would be even 50 votes for the bill the way it now stands.
The American Civil Liberties Union, ACLU for short, came out with a well done op-ed article in The Washington Post recently, detailing some of the problems with the disclosure portions of the bill, that I call the exposure portions of the bill. A lot of other liberal groups, when they start flipping through the several hundred pages, will become increasingly alarmed at their ability to speak if this bill were to become law. So I hope people will take a close look and start to speak out about it before it’s too late.
Mr. Jekielek: David, any final thoughts before we finish up?
Mr. Keating: I’m pretty confident there wasn’t a single member of the House or if there was only a handful that read all the provisions that affected the free speech that we have and hold precious today. I hope the senators and their staff aides will take a really close look at this bill and will conclude, as I think any reasonable person would, that there are many, many problems in this bill.
This is not something that should have been rushed through in a matter of a few weeks, with no hearings, which was the case in the House. It needs careful deliberation, and they really should scrap all the provisions in the bill that would suppress our ability to speak out about government.
Mr. Jekielek: David Keating, it’s such a pleasure to have you on.
Mr. Keating: Great. Thank you for having me.
This interview has been edited for clarity and brevity.