Coalition Letter - H.R. 1, "For the People Act of 2019."

Tuesday, March 5, 2019 - 4:00pm

To Members of the United States House of Representatives:

We write to express our opposition to H.R. 1, disingenuously named the “For the People Act of 2019.” Although its supporters focus on aspects of the bill that purport to bring more people into the political process, other parts of the legislation are clearly designed to have precisely the opposite effect – pushing certain voices, representing large segments of the electorate and our economy, out of the political process altogether.

Over the past several Congresses, various iterations of the legislation known as the DISCLOSE Act have been introduced. The profound constitutional problems of that legislation are well documented and include: (1) that it sought to chill associational and speech rights guaranteed by the First Amendment by threatening donor disclosure for groups engaged in advocacy; (2) that it provided for unequal treatment of speakers, severely burdening the business community while leaving unions largely unaffected; and (3) that it sought to deter speech through the imposition of unnecessarily burdensome disclaimers and reporting requirements. Remarkably, H.R. 1 takes the worst ideas and impulses of the DISCLOSE Act and expands upon them in ways that have incredibly harmful – and unconstitutional – consequences.

Campaign finance law is inherently complex, and even finely-tuned changes can have unintended, chilling effects on protected First Amendment activity. But the campaign finance provisions of H.R. 1 are not finely-tuned. Perhaps the most striking example is H.R. 1’s sweeping regulation of so-called “campaign-related disbursements,” which captures a brand-new category of communications that “promote,” “attack,” “support,” or “oppose” a candidate or elected official (“PASO communications”). Unlike existing campaign finance law, which regulates speech that either expressly advocates a candidate’s election or defeat or that mentions a candidate in relatively close temporal proximity to an election, the vague and overly broad new definition of PASO communications applies year-round and threatens to consume any legislative advocacy that dares mention an elected official. The penalties imposed by H.R. 1 for engaging in PASO communications are severe – a group that spends more than an aggregate of $10,000 on such communications over a two-year election cycle must, among other things, file reports publicly disclosing all of its donors who have given it more than $10,000 during the election cycle. As in previous versions of the DISCLOSE Act, the $10,000 donor threshold appears designed to target business organizations while largely sparing labor organizations from disclosure of their funding sources, which are typically union dues that are far less than $10,000.

If H.R. 1 becomes law, organizations should not expect the FEC to adopt a narrow view of what constitutes regulated speech under the legislation’s vague and overly broad new definition of PASO communications. That is because H.R. 1 also fundamentally transforms the FEC from a non-partisan agency (comprised of three commissioners from each party) into an overtly partisan enforcement tool controlled by a majority of commissioners from the political party then in power. Although it may frustrate opponents of free speech, the FEC’s current, non-partisan structure was not an accident – it was a careful and conscious choice made by Congress forty-four years ago to respect the contours of the First Amendment, avoid chilling legitimate speech, and prevent the FEC from becoming a political weapon. It was a recognition that when there are close calls, the tie should be resolved in favor of free speech and not censorship or politically motivated enforcement actions. Like other provisions of H.R. 1, this proposed change to the FEC’s structure seemingly has been designed to maximize the chilling effect on groups that wish to express a view about their elected officials and what those officials are doing.

There are many other aspects of the legislation that are extremely problematic. To highlight just a few:

  • Under existing law, certain communications that are coordinated with a candidate may be deemed to be an in-kind campaign contribution to a candidate. Because corporate organizations (including associations) are not permitted to make campaign contributions of any kind to a candidate, these kinds of coordinated communications are also prohibited. But H.R. 1 would deem communications by such organizations to be “coordinated” (and thereby prohibited) if the organization has even the most innocuous and tenuous of connections with a candidate – a meeting with an elected official to discuss a policy issue, an organizational employee who was previously employed by the elected official or candidate in any capacity, or a common vendor with a candidate – even if that connection had absolutely nothing to do with the candidate’s campaign.
  • H.R. 1 would also usher in a host of onerous disclaimer requirements for those engaging in communications that mention a candidate or elected official, even if those communications are related to legislative issues. Given that current law already requires the clear identification of the group or individual responsible for a candidate communication, these new disclaimer requirements only serve to burden the exercise of speech, presumably to discourage it in the first instance.

Free speech and the robust debate of ideas have been the lynchpin of American democracy and progress for more than two centuries. Because major aspects of H.R. 1 are fundamentally incompatible with that American tradition and the principles enshrined in our Constitution, we strongly urge you to oppose this legislation.

Sincerely,

Agricultural Retailers Association
Airlines for America
Alliance of Automobile Manufacturers
American Bankers Association
American Council of Engineering Companies
American Financial Services Association
American Foundry Society
American Forest & Paper Association
American Petroleum Institute
American Property Casualty Insurance Association (APCIA)
Associated Builders and Contractors
Associated General Contractors of America
Associated Wire Rope Fabricators
Auto Care Association
Construction Industry Round Table
Energy Equipment and Infrastructure Alliance
Family Business Coalition
Food Marketing Institute
Foodservice Equipment Distributors Association
Heating, Air-conditioning & Refrigeration Distributors International (HARDI)
Independent Electrical Contractors, Inc.
Insurance Associates, Inc.
International Association of Plastics Distribution
International Foodservice Distributors Association
International Franchise Association
March for Life Action
Motorcycle Industry Council
National Association of Chemical Distributors
National Association of Electrical Distributors
National Association of Manufacturers
National Association of Wholesaler-Distributors
National Black Chamber of Commerce
National Club Association
National Electrical Contractors Association
National Grocers Association
National Independent Automobile Dealers Association
National Insulation Association
National Investor Relations Institute
National Lumber and Building Material Dealers Association
National Marine Distributors Association
National Retail Federation
National Waste & Recycling Association
North American Millers Association
Portland Cement Association
Retail Industry Leaders Association
Textile Care Allied Trades Association
The National Stone, Sand and Gravel Association
The Toy Association
Transportation Intermediaries Association
U.S. Chamber of Commerce

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