On Tuesday May 11, 2021 at 10:00 AM EDT the Senate Rules Committee will hold a “mark-up” hearing on S.1, (H.R. 1 in the House) where the Committee will debate and vote on
various amendments to the Democrats’ bill to federalize elections and do away with the First Amendment’s free speech protections.
And make no mistake, no matter what Democrats say, passage of S. 1 means the end of free speech about politics and political campaigns and candidates.
As our friends at the Institute for Free Speech explained, nine former Federal Election Commission commissioners have released a letter to congressional leaders fiercely criticizing both H.R. 1 and S. 1, the bills we have characterized as the “intimidate conservatives” bills.
The key point the former Commissioners have added to the discussion of the proposed legislation is the bill’s proposed “speech czar.”
The former Commissioners wrote that rather than improving the Commission, H.R. 1 would abandon bipartisan enforcement of the law in favor of a top-down approach led by a speech czar chosen by the president. The letter expresses concern about the considerable new powers given to this czar, who would inherit the title of FEC Chair but hold a very different office:
[H.R. 1] allows the Chair, who is appointed on a partisan basis by the President, to hire and fire the FEC’s General Counsel, a statutory position, with the support of just two commissioners. Thus, this crucial enforcement position can be filled with no bipartisan agreement… Further, it places sole authority to hire or fire the Commission’s Staff Director, also a statutory position, in the hands of the FEC Chair, not even requiring the support of an independent commissioner. The Staff Director oversees the Commission’s Auditing, Reports Analysis, Administrative Fines, and Alternative Dispute Resolution processes, which combined handle far more enforcement matters than the Office of General Counsel. Both the appearance and reality of bipartisanship in enforcement is fundamental to the FEC’s success, and Title VI destroys both.
Lest anyone misunderstand, what this means is that H.R.1 and S. 1 would give partisan Democrats control over what Republicans can and cannot say in election ads and allow Democrats to weaponize the power of government against their partisan opponents.
In a nutshell, H.R. 1 and S. 1 do away with the FEC’s existing bipartisan structure to allow for partisan control of the regulation of campaigns and enables partisan control of enforcement. It also proposes changes to the law to bias enforcement actions against speakers and in favor of complainants.
Bradley A. Smith, Chairman of the Institute for Free Speech wrote, since it was created in 1974, the FEC has been a true bipartisan commission, with each major party effectively controlling 3 of its 6 seats. (Current law says that “[n]o more than 3 members of the [FEC] … may be affiliated with the same political party.”)
Under the post-Watergate statute creating the FEC, four votes are needed for the Commission to initiate investigations or to prosecute alleged violations.
As a result, it is impossible for an investigation or prosecution of a Democratic campaign to go forward on the basis of Republican votes alone, and vice versa – there must be at least some bipartisan agreement that an investigation or charges are warranted.
Mr. Smith also pointed out that H.R.1 empowers the Chair of the Commission, who will be hand-picked by the president, to serve as a de facto “Speech Czar.” In particular, the Chair would become the Chief Administrative Officer of the Commission, with the sole power to, among other things, appoint (and remove) the Commission’s Staff Director, prepare its budget, require any person to submit, under oath, written reports and answers to questions, issue subpoenas, and compel testimony.
H.R.1 and S.1 would also dispose of the requirement in existing law that the Commission’s Vice Chair come from a different party than the Chair, further allowing power at the agency to be consolidated within one party.
And just to make sure to goals of H.R.1 and S.1 are unmistakable, the bill times the enactment of this provision to ensure continued one-party control of the Commission.
As a result, the president elected in 2020 will be able to ensure that his appointees constitute a majority of the Commission and the powerful Chair’s Office through at least 2027, even if he is not re-elected in 2024.
Relatedly, wrote Mr. Smith, this structure will result in all new regulations required under other provisions of H.R. 1 being written by the initial appointing president’s team of the Chair, supportive commissioners, and their appointed General Counsel. These provisions can be written (and if necessary re-written) with a specific eye to the 2022 midterms and the 2024 and 2028 presidential races.
Mr. Smith also noted that H.R. 1 expands the General Counsel’s power while eroding accountability among the Commissioners. In a departure from existing practice, H.R. 1 provides that the General Counsel may initiate an investigation if the Commission fails to pass a motion to reject the General Counsel’s recommendation within 30 days. Such a change allows investigations to begin without bipartisan support while also allowing commissioners to dodge any responsibility for their decisions by simply not taking a vote and letting the General Counsel’s recommendation take effect.
H.R. 1 and S.1 also expand the Czar-like powers of individual government staff people by permitting the General Counsel to issue subpoenas on his or her own authority, rather than requiring an affirmative vote by the Commission.
And to ensure that these new Czars’ word is law, H.R.1 and S.1 create new standards of judicial review that weaken the rights of respondents in Commission matters.
If a respondent challenges in court a Commission decision finding that it violated the law, the court will defer to any reasonable interpretation the agency gives to the statute, but if the respondent wins at the Commission, no deference will be given to the FEC’s decision, if challenged in court. This “heads I win, tails you lose” approach harms respondents and biases court decisions against speakers.
The entire concept of a “speech czar” is completely Un-American and antithetical to the constitutional values of freedom of speech and freedom of the press. Call the toll-free Capitol Switchboard (1-866-220-0044), tell Republican Representatives and Senators you are speaking on behalf of the millions of Americans who cherish and rely on their right to speak freely about political campaigns and issues; tell them you demand they oppose H.R. 1 and S. 1 and the creation of “speech czars” to police political speech.
NAACP v. Alabama
For the People Act