Newsmax: The Constitution a Problem for Democrats' 'For the People Act'

As appeared in Newsmax:

The House Democrats came out swinging for the fences with the introduction of H.R. 1, the “For the People Act of 2019.” The fences, however, are a series of critical constitutional protections proven over centuries to protect against both political sabotage and unwarranted government control. The bill passed the House on a pure party line vote.

As a result, H.R. 1 enters the arena with a big target on its back — and the courts will be the place where the U.S. Constitution will have its day.

In what can only be described as a thinly veiled attempt to overturn the landmark 2010 Supreme Court decision Citizens United v. Federal Election Commission, the new bill proposes to create an entirely new system of both public financing of political campaigns (read, taxpayer-funded) and new bureaucratically enforced penalties against so-called “false statements” against political candidates made by “others” (read, you and me). H.R. 1 also introduces a “pre-registration” system for 16-year-olds to vote, a blatant first step toward a required Constitutional amendment allowing the same.

The Citizens United decision came after years of litigation challenging a series of political speech limitations enacted by Congress, notably the McCain-Feingold Bipartisan Campaign Reform Act of 2002 (BCRA), which we challenged before the Supreme Court. Ultimately, the high court held that political spending is a form of protected speech under the First Amendment, and the government may not keep corporations or unions from spending money to support or denounce candidates in elections. Importantly, the decision held that groups and individuals may seek to persuade the voting public through other means, including ads.

As uncomfortable as that may seem to some, it is nevertheless consistent with First Amendment free speech protections, particularly political speech — the most protected form of speech, warranting the strictest scrutiny against federal laws designed to regulate or limit it.

H.R. 1 turns this safeguard on its head, once again enforcing federal limits on both how campaign contributions must be made, and what speech is “allowed” relating to campaigns and candidates.

Likewise, the bill proposes a raft of new voter registration and election management laws controlled by the federal government, roles that have traditionally and constitutionally been held by states alone. The bill requires all states to implement automatic voter registration, and it eliminates all criminal penalties for ineligible voters registered in error. With no integrity protections in place, there are potentially legions of ineligible people who would become “registered to vote” under the new system, as a recent Heritage Foundation report found. The registration standard, according to the bill? A picture of a signature, and registration can be done the same day as the election.

With little in the way of authentication, and utterly upending various state law standards and protections, H.R. 1 creates a perfect storm for well-organized political sabotage.

And back to Citizens United. H.R. 1 forces 501(c)(4) charitable organizations to disclose their donors, a slap at the critical Supreme Court decision NAACP v. State of Alabama (1958), which held that the state could not force the NAACP to disclose its membership rolls as part of its effort to force the group to leave the state — a critical protection against political intimidation.

It further prohibits a wide range of organizations from making contributions to candidates or SuperPACs. On the other hand, H.R. 1 requires no disclosure of small-dollar contributions, which are often aggregated in the millions from outside a targeted district — a tactic utilized often in recent congressional and state elections.

On top of new taxpayer financing for campaigns, stringent and potentially unconstitutional disclosure and contribution limits, and a Wild West-style voter registration federalization, H.R. 1 proposes new federal commissions and bureaucracies to oversee and investigate campaigns, elections and speech content — all of which beg for voter awareness and court scrutiny.

Todd Young serves as Executive Director for Southeastern Legal Foundation (SLF), an Atlanta-based national constitutional public interest law firm founded in 1976. In his role at SLF, he has worked closely in an advisory capacity with former U.S. Attorney General Edwin Meese III, former Independent Counsel Judge Kenneth Starr, former Speaker of the House Newt Gingrich, and various members of Congress and state governors and attorneys general.

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