I posted this answer, focussing oin the first part of the question. Walter Olson addresses the second part:
In many respects, it most certainly is unconstitutional, if The Constitution has any substance.
The most egregious parts of the bill add up to a broad-based attack on intellectual freedom--those rights enumerated in the First Amendment--as well as privacy rights. If we value our freedom, we’d better hope the Supreme Court strikes them down (should they pass into law). The First Amendment reads
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.
HR-1 [S-1 in the Senate version] is hyped as a “Voting Rights Act.” But beneath that slogan are provisions that threaten more fundamental rights to freedom of speech, association, conscience, privacy, and petition. HR-1/S-1 . . .
severely restricts independent political spending by so-called “Super Pacs”--associations of individual activists--by redefining and expanding what constitutes “coordination” between politicians’ campaigns and independent groups. Spending being the means of exercising free speech, restrictions on spending violates donors’ free speech rights. A major supporter of HR-1/S-1, the Brennan Center, makes plain the bill’s target: These restrictions are a gimmick to make an end run around Citizens United, the 2010 Supreme Court case that stands as the biggest victory for freedom of speech in recent history.
provides for “public” funding of elections, violating freedom of conscience by forcing the taxpayer to fund politicians’ campaigns without their consent and/or even if the politician’s policies violate the taxpayers conscientious beliefs. [Note: The Founders used freedom of religion and freedom of conscience interchangeably. Despite the wording, the First Amendment guarantee of religious freedom has always been understood, from the Founders to the present, to extend beyond religion to all matters of personal conscience].
forces disclosure of anonymous contributions to political action organizations. Demonized as “dark money” by HR-1/S-1’s Orwellian proponents, forced disclosure violates the donors’ privacy rights by outlawing the confidentiality of donors, a move that discourages donations and thus restricts freedom of speech and association. Laws forcing disclosure are already being challenged (California) and/or have been defeated (New Jersey) in the courts. Groups from across the ideological and cultural landscape are united in opposition to forced disclosure. Americans for Prosperity, the American Civil Liberties Union, the Illinois Opportunity Project, and the Liberty Justice Center helped defeat the NJ law. In asking the Supreme Court to overturn the California law, The Americans for Prosperity Foundation and Thomas More Law Center are backed by the ACLU, Alliance Defending Freedom, Americans United for Life, Animal Legal Defense Fund, Becket Fund, Cato, Council on American‐Islamic Relations, Human Rights Campaign, Institute for Justice, NAACP, NARAL of North Carolina, PETA, Young Americans for Freedom, Young Americans for Liberty, Southern Poverty Law Center, Zionist Organization of American, various religious orders and missionary groups, universities, and more.
sharply increases requirements on lobbying, making it much harder for private citizens to peaceably assemble to petition the government, violating freedoms of association and petition.
Taken together, HR-1/S-1 is a broad-based rollback of the First Amendment, and then some. As Constitutional scholar Walter Olson observes, it’s hard to keep up with the many potentially unconstitutional provisions of HR-1/S-1.
It is shocking that an act of Congress that opens with “To expand Americans’ access to the ballot box” contains an assault on the First Amendment. HR-1/S-1 violates the very inalienable rights which give substance, meaning, and effectiveness to elections, and substantially reduces the ability of voters to hold their elected political leaders accountable. This so-called “Voting Rights Act”—officially labeled, with a straight face, the “For the People Act”—is an insult to actual people who take their actual right to vote seriously.
Despite all of the Left’s hand-wringing over supposedly “restrictive” new state voting laws in places like Georgia, Florida, and Texas, the Democrats’ alleged answer to these laws greatly restricts the rights that give energy and meaning to elections. The democratic process means nothing without the unfettered freedom of ordinary citizens to publicly express, persuade, argue, rebut, scrutinize, criticize, and dissent without fear or restriction so long as you don’t libel or incite imminent violence. “To expand Americans’ access to the ballot box” while simultaneously shrinking access to public debate is an insulting absurdity. This, in the name of “anti-corruption measures for the purpose of fortifying our democracy.” The only people that the “For the People Act” is actually for is the political class.
Related Reading:
‘Partly Constitutional’ Isn’t Enough: Senate Should Reject the ‘For the People Act’ by Walter Olson for CATO
In other forms, parts of the Democrats’ election bill have already been struck down in the courts. But Democrats are proceeding anyway.
HR-1 is An Assault on Free Speech, Property Rights, Freedom of Conscience, and Privacy
Democracy Doesn’t ‘Win’ When Free Speech is Suppressed, Voting Rights or No Voting Rights.
How Many of H.R. 1’s Provisions Are Unconstitutional? By Walter Olson for CATO
‘Dark Money’ is Free Speech. Protect It
Yes, ‘Big Money’ in Politics Fosters Ideological Debate—and That’s a Good Thing
Why Free Speech and Spending on Speech are Inextricably Linked
The Intimidation Game: How the Left Is Silencing Free Speech--by Kimberley Strassel
Democracy for All: The "Drown Out the Voice of Average Americans" Amendment
1 comment:
As well as a matter of unconstitutionality, there's a matter of crime here. Where the Constitution upholds unalienable individual rights, anything unconstitutional is a violation of rights. When this is backed by physical power under the guise of legitimacy, it's crime.
In elections, when voters are offered alternatives that violate rights, making those offerings, on the ballot at voting time, are crimes, punishable under law. When legislators are offered bills violating rights to vote on, making that offer is a crime punishable under law and under the rules of the legislature. These are crimes on principle, and, as a practical matter, voters are made free to actually vote in favor of violations of rights, and enough voters might favor them to give them force under the guise of law, authority and legitimacy. These are crimes, criminals and lots of accomplices. If the system of separation and division of power, and of checks and balances, isn't enough to prevent these criminal offerings, due process is perverted to its opposite purpose. A stronger and more reliable gatekeeper is needed.
Constitutions and laws are structures for enforcing unalienable individual rights, with no violations of rights in them. They're like structural steel supporting buildings, with no built in weakening features to make them fall down.
Voting within unalienable individual rights, for the best way to keep them enforced, where all alternatives work solely to enforce them, is a legitimate and necessary right. Outside those rights, offering weakening features on the construction site so to speak, is a crime, making the voting right subject to criminality because the voter is free to vote for crime. If the voter votes for crime, the voter has perverted the voting right, complicit with crime, if there are enough votes to establish the crime by the perversion of due process and of the system as a whole.
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