On Wednesday, the U.S. House of Representatives passed H.R. 1, the “For the People Act,” a sweeping election bill that would gut election integrity measures like state voter ID laws. The American Civil Liberties Union (ACLU) supports the vast majority of H.R. 1’s attacks on election integrity, but even this leftist organization had to object to one particularly noxious part of the bill that would undermine free speech in politics.
H.R. 1 would require politically-active organizations, including 401(c)3 nonprofits, to disclose donors who give $10,000 or more. If an organization released an ad attacking a politician like Sen. Ted Cruz (R-Texas) or House Speaker Nancy Pelosi (D-Calif.), that group would have to disclose its donors. While many on the Left support this kind of mandated disclosure to fight “dark money,” the ACLU rightly warned that such a provision “could directly interfere with the ability of many to engage in political speech about causes they care about and that impact their lives.”
Kate Ruane and Sonia Gill, senior legislative counsels at the ACLU, took to The Washington Post to voice these concerns.
“We know from history that people engaged in politically charged issues become political targets and are often subject to threats of harassment or even violence. This should be gravely concerning in light of the rise in white supremacist violence that has brazenly targeted private citizens and public officials alike,” Ruane and Gill wrote. “Moreover, in the time of social media, there is heightened interest in who is supporting these efforts.”
As evidence of this threat, Ruane and Gill pointed to calls for an investigation into who had been funding what the ACLU lawyers described as “Black Lives Matter demonstrations in Louisville, after videos showed a man distributing protest signs and other provisions to protesters.” The “other provisions” included large shields reminiscent of violent riots across the country.
Ruane and Gill went on to attack the Department of Justice under former President Donald Trump for launching an investigation into those who funded the “coordinated, criminal activity … and violence related to riots, destruction of federal property and violence against law enforcement officers.” The ACLU lawyers described the investigation as an “inquiry into who ‘funded’ protests, as though opposing police violence was a crime.”
While the ACLU seized on wrong examples to support the point, however, the organization correctly warned against the demonization of political speech and organizing protected by the First Amendment.
In 2015, then-Attorney General Kamala Harris (D-Calif.) ordered two conservative nonprofit organizations, Americans for Prosperity (AFP) and the Thomas More Society (TMLC), to hand over their donor lists. AFP staffers and donors testified about the threats they had received before any forced disclosure. In fact, leftists produced a video game based on the concept of an active shooter getting into AFP headquarters. The game gave users points for killing AFP staff. In January, the Supreme Court took up the case regarding Harris’ order.
“It is beyond debate that the freedom to engage in association for the advancement of beliefs and ideas is an inseparable aspect of the ‘liberty’ assured by the Due Process Clause of the Fourteenth Amendment,” The Supreme Court wrote in the landmark case NAACP v. Alabama (1958). The State of Alabama had ordered the NAACP to hand over a list of its members during the era of segregation when the Ku Klux Klan held tremendous power in the state. The Supreme Court defended the NAACP from this government harassment.
Ruane and Gill, the ACLU lawyers, rightly cited NAACP v. Alabama on this issue.In that case, the Supreme Court held that “inviolability of privacy in group association may in many circumstances be indispensable to preservation of freedom of association, particularly where a group espouses dissident beliefs.”
“In other words, when a group is advocating policy changes outside the mainstream, they need privacy protections to be able to speak freely and without fear of reprisal,” the ACLU lawyers wrote. “H.R. 1 purports to provide an exception for donors that would experience harassment, but it is a flimsy and unworkable protection. If the idea is that organizations are required to prove their members will be harassed, the exception will be ineffectual, under-inclusive and costly to claim.”
The ACLU was not alone in warning about this crackdown on free speech.
“Throughout its nearly 800 pages of complex and convoluted text, H.R. 1 imposes unworkable and invasive regulations on the ability of individual Americans and groups of citizens to discuss vital policy issues with elected officials or the public and to exercise constitutionally protected freedoms,” Alliance Defending Freedom Senior Counsel Zack Pruitt explained. “The bill intrudes upon the private financial decisions made by everyday citizens, subjecting them to harassment and intimidation simply for giving to causes they care about.”
This attack on free speech in politics is not the only quibble the ACLU lawyers found with H.R. 1, and it is far from the only complaint conservatives have against the bill. The ACLU lawyers complained that H.R. 1 would expand the prohibition on paid advocacy from foreign nationals, including DACA recipients, asylum seekers, and other non-citizens, while conservatives rightly complain about the provisions the ACLU supports — eviscerating voter ID requirements, for instance.
Yet, when it comes to this important issue — allowing Americans to come together to express their political views freely without mandated exposure to harassment — even the ACLU agrees with ADF and other conservatives. This alone should doom H.R. 1.
Tyler O’Neil is the author of Making Hate Pay: The Corruption of the Southern Poverty Law Center. Follow him on Twitter at @Tyler2ONeil.