Thursday, March 11, 2021

HR-1 is An Assault on Free Speech, Property Rights, Freedom of Conscience, and Privacy

Looming just over the political horizon is HR-1, which just passed in the House of Representatives. This bill is massive. Despite being peddled as a “voting rights bill”, HR-1 goes way beyond voting. As CATO’s law and constitutional scholar Walter Olson explains:


In fact H.R. 1 is a sprawling omnibus measure that would assert federal control over a broad array of areas of American life related not just to elections and campaigns but to the dissemination of opinion about politics and policy, as well as a range of matters yet further afield.


This is a dangerous, authoritarian assault on many of our freedoms. The biggest danger, in my view, is its provisions that undermine our First Amendment rights. This part, which concerns campaign finance, strikes at the heart of our freedoms of speech, conscience, and privacy, as well as property rights.


Here is a statement concerning the “Influence of Big Money’ from The Brennan Center for Justice,  a supporter of HR-1, under the heading “Why it Matters.” The Brennan Center claims to be a bipartisan institution dedicated to “uphold the values of democracy [and] stand for equal justice and the rule of law.” But as we can see in this statement, it is strongly statist and Left-leaning:


Today, thanks Supreme Court decisions like Citizens United, big money dominates U.S. political campaigns to a degree not seen in decades. Super PACs allow billionaires to pour unlimited amounts into campaigns, drowning out the voices of ordinary Americans. Dark money groups mask the identities of their donors, preventing voters from knowing who’s trying to influence them. And races for a congressional seat regularly attract tens of millions in spending. It’s no wonder that most people believe the super-wealthy have much more influence than the rest of us. 


These are talking points meant to obfuscate, not educate. There are two main reasons why this bill should be defeated. First, it is a massive violation of individual rights, including free speech and property rights. Second, it strips private citizens of a powerful tool to hold politicians accountable. This, in a bill also dubbed the “For the People Act” (seriously).


“Campaign finance”, whether to advocate or oppose a candidate or issue, is essentially a vital tool for delivering your viewpoints to others. It’s your means of realizing what’s in your mind in the material world. The ability to spend money on your expression is fundamental to free speech. Restrictions on spending is therefore a restriction on free speech. Let’s dig into some of the Brennan Center’s rhetoric.


Dark money groups mask the identities of their donors, preventing voters from knowing who’s trying to influence them.


The ability to keep your contributions and spending private and anonymous, if you choose, is a privacy right that is particularly critical to your freedom to speak out. Activists should not have to expose themselves publicly, with the threat of harassment or economic retribution being public often carries, as a price for exercising the right to free speech. Voters have no right to know “who’s trying to influence them.” The critical connection between free speech and privacy is so strong that two organizations that are typically on opposite sides, Americans for Prosperity and the ACLU, have both sued to defeat a law in New Jersey that forces political action organizations to disclose their donors. In the name of “the people,” HR-1 attacks our privacy. This, the For the People Act!


The idea that too much spending means too much influence is laughable. How could there be too much influence? Influence simple means persuasion. That’s it. Individual voters decide,and each of us has one vote regardless of how much we spend on political advocacy. The whole point of political speech, and the spending that enables that speech, is to seek to persuade. If your speech is not intended to influence others’ opinions, votes, and legislation, then what’s the point of your right to express yourself? The reason politicians want to reduce private money “influence” is to increase their own influence. This, the For the People Act! 


Super PACs allow billionaires to pour unlimited amounts into campaigns, drowning out the voices of ordinary Americans. 


It’s claimed that so-called “big money” “drowns out the voices of ordinary Americans.” This is probably the stupidest excuse for restricting private campaign spending. No “ordinary” American is ever stopped from speaking out in any number of ways, from voting, or from donating to political causes, including political action committees. For one thing, small donors vastly outnumber large donors, allowing individuals with modest means to compete with “big money” by sheer numbers. Bernie Sanders built a well-funded, almost-successful presidential campaign mostly on small donors. For another, not all  “big money” spending comes from billionaires. Large campaign expenditures often are made by political action organizations that have hundreds or thousands of small donors. Thirdly, large donors enhance the voices of we ordinary Americans, at no cost to us, whenever they advance candidates and causes we agree with. And individual voters have a powerful weapon that no campaign donor, no matter how large, can weaken--contacting one’s representative directly. Politicians listen to their constituents. They have to. They know they’d better.  Billionaires’ political spending does not “drown out” anyone.


It’s claimed that money corrupts politics and democracy. But the truth is the exact opposite. Money spent on campaigns and issues, by reaching mass audiences, fosters discussion and debate by exposing more people to differing viewpoints. Socially, this expression advances the beliefs of people who agree, offers the opportunity for rebuttal for people who disagree, and adds to the ability of everyone to sort out truth from falsehood, facts from lies, through vigorous debate. And that’s how it should be. The only “losers” are the politicians who have to answer to these expressions, which is why some politicians want to stifle the voices of ordinary people--the very “ordinary Americans” they claim are being drowned out billionaires. But as this contradiction shows, only the government has the power to drown out anyone. 


HR-1 and Brennan also call for public funding of elections. On the face of it, this is a strange position for an organization that supposedly stands for equal justice. Then again, maybe not. There is no mention of individual rights in the Center’s mission statement. Public, or taxpayer, funding of elections violates the property rights of individuals by forcing them to financially support candidates without consent, violating their right to direct their political spending, if any, as they choose. So much for equal justice under the rule of law. It also violates free speech rights. Free speech is derived from intellectual freedom, which includes the right not to support that which you do not agree with. And to the extent taxpayers are forced to financially support candidates they disagree with, their freedom of conscience is violated. Property rights, freedom of speech, and freedom of conscience are all to be sacrificed to public funding of elections. This is unconscionably immoral, and unjust. This, the For the People Act! This, in the name of “fixing our democracy.”


Finally, think of what public funding of elections does to pro-liberty, pro-free market politicians. A person who wants to run for office on a pro-liberty platform will be forbidden, or greatly limited, from taking private campaign donations. He’ll have to take taxpayer money, putting him in a position of having to violate his own principles and conscientious beliefs just to run for office. He would be open to false charges of hypocrisy. Public financing of elections is a statist idea that immediately discriminates against any pro-liberty politician, and gives a built-in advantage to statist candidates. So much for fairness and justice. So much for fighting the “corruption” of big money donations. This, the “For the People Act.”


The real reason politicians want public funding of elections while simultaneously placing limits on private political spending is to take control of the electoral process. They get to set the rules for who can run for office, and challenge incumbents. They get to make the rules governing who qualifies for funding. Further, relieving political candidates of the necessity to seek voluntary private funding from private citizens reduces their accountability to the private citizenry. Public funding strips citizens of a key ability to hold politicians accountable to the people they seek to govern, by withholding funding from politicians who don’t live up to their own promises. What good are voting rights if you have no choice on which candidate’s campaigns to fund, or even a choice of whether or not to fund any campaign at all? This, in the name “voting rights'' and democracy. If the democratic process is of any value, then it is right that people who want to hold political office should have to go, hat-in-hand, to the people they seek to govern for money they need to finance their campaigns. The last thing they should have the power to do is seize their campaign funds from citizens at legalized gunpoint.


It doesn’t matter whether public funding is added to private funding or completely replaces it. It’s wrong for all of the same reasons. And given the prominent role of precedent in law, along with the arguments advanced against private “money in politics,” it’s naive to think that once public funding gets a foothold, it won’t eventually become 100%. After all, if “money corrupts our democracy,” as the mantra goes regarding private campaign giving, why have any of it? The truth, in fact, is just the opposite. Public funding, not private funding, is inherently corrupt.


Public funding of electoral campaigns and/or limits on private political spending and/or banning anonymous so-called “dark money” accomplishes only one thing: It limits the necessity for politicians to answer to the people whose votes they seek. Politicians would prefer a less informed electorate more susceptible to politicians’ sloganeering and demagoguery. In the name of the “voting rights” of “the people,” HR-1 is a major attack on freedom and American-style democracy. In the name of “restoring our democracy,” it only empowers the people who hold the reins of the physical force of law, the politicians and the bureaucrats they appoint. It disempowers the rest of us--we, the people in whose name HR-1 is being pushed. That’s why only statists support it. It is probably the worst bill in the Democrats’ mostly anti-liberty ”progressive” legislative arsenal.


As Olson observes, this misnamed “Voting Rights Act”  is really “a grab‐​every‐​power‐​in‐​sight piece of omnibus legislation.” And it looks like the Democrats will succeed in ramming it through congress, and down the American people’s throats. It may be that the only hope of dismantling this totalitarian bill will be through the courts. Trump’s judicial appointments will be put to the test -- unless the Democrats manage to pack the courts, too.


Related Reading:


Dem Rep Malinowski Reprises Trump in Proposed Legislative Attack on Social Media and Free Speech.


Incumbents’ Fear of 'Wild, Wild West' Campaign Funding is a Good Thing


Yes, ‘Big Money’ in Politics Fosters Ideological Debate—and That’s a Good Thing


‘Finance-Free Politics’ Would Free Politicians from Accountability to the People they Legislate Over


Why Free Speech and Spending on Speech are Inextricably Linked


The Anti-Free Speech Fallacy of ‘Dark Money’


‘Dark Money’ is Free Speech. Protect It


The Intimidation Game: How the Left Is Silencing Free Speech--by Kimberley Strassel, especially Chapter 2, “Publius & Co.”


Campaign Finance: Free Speech, Not Disclosure, is the Main Issue


Making Private Donations Anonymously is a Right


Citizens United and the Battle for Free Speech, by Steve Simpson


N.J. AG Confirms: State’s Disclosure Law is about Stifling Political Accountability


Campaign Finance—Voluntary Contributions vs. Public Funding: Which is ‘Dirty?’


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