An ugly, spine-chilling menace beleaguers American government, we’re told. The nonprofit Center for Responsive Politics (CRP) says this horror ran “rampant” during Donald Trump’s tenure “despite his pledge to ‘drain the swamp.’” Even the seraphic Joe Biden can’t slay this devil without robust legislation, which congressional Democrats have blessedly drafted.
This putative nightmare is called “shadow lobbying,” and CRP defines it thus: “When an individual engages in advocacy to influence public policy but does not register as a lobbyist….”
Most people call this something else, like “speaking freely” or “exercising First Amendment rights.” Again, don’t fret; Congress aims to end all that.
The House bill to achieve this, titled the “For the People Act” (FPA), does much else that should embarrass its author John Sarbanes (D-MD). For starters, it would require automatic voter registration nationwide, allow released felons to vote, permit people to vote outside their precincts, expand mail-in voting, compel public funding of campaigns, and affirm support for District of Columbia statehood.
Given the contentiousness surrounding the 2020 election and its aftermath, recent news coverage of the Sarbanes bill has centered on its voting provisions. But its consequences for political speech are just as heinous.
Its supposed purpose is to check the influence of moneyed interests. According to the CRP, concerns about shadow lobbying mainly stem from corporate staffers or consultants directing lobbying activities without registering under the 1995 Lobbying Disclosure Act. But the FPA would impact the rights of Americans who don’t remotely fit this category.
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By broadening the description of lobbying to include “counseling services in support of lobbying contacts” and failing to clearly define “counseling services,” the bill would force many politically active Americans to register as lobbyists.
Elsewhere in the FPA, Sarbanes weaponizes campaign finance law against grassroots political expression. Organizations discussing federal legislation, candidates, or officials would face more onerous reporting obligations. An analysis by attorney Eric Wang, a senior fellow at the D.C.-based Institute for Free Speech (IFS), calls these changes “difficult for even campaign finance attorneys to understand” and asserts they would “give major headaches to any group that speaks on public issues.”
The FPA would also force groups issuing political advertisements to include longer disclaimers than those now mandated. Big deal, right? But many online campaign ads take up little space and many broadcast messages run shorter than 30 seconds. The smaller associations that create these ads cannot match the resources of larger political outfits. Might makes right, you see. Furthermore, the legislation would require many political advertisements to identify top donors. Wang believes this would exacerbate political harassment and public shaming as well as deter many donors from contributing. As HC reported last July 13, this kind of mobbing is already an occasional problem. (Not mentioning any names, Councilwoman Kamin.)
One particular section of the bill must be read to be believed: “Any covered organization that makes campaign-related disbursements aggregating more than $10,000 in an election reporting cycle shall, not later than 24 hours after each disclosure date, file a statement with the Commission made under penalty of perjury that contains… the election to which the campaign-related disbursement pertains and if the disbursement is made for a public communication, the name of any candidate identified in such communication and whether such communication is in support of or in opposition to a candidate.”
In sum, groups that neither support nor oppose political candidates must declare to the Federal Election Commission (FEC) that they either favor or disfavor candidates mentioned in their advertisements.
Sarbanes’s bill threatens the First Amendment’s speech protections in numerous other ways: it expands the FEC’s oversight of social-media communications; it empowers the commission to conduct partisan investigations more easily; and it recategorizes many instances of speech as being “coordinated” with federal candidates and therefore subject to heavier regulation.
So grievously does the FPA infringe on Americans’ freedom of expression that even the far-left American Civil Liberties Union (ACLU) strenuously opposes it. In a 2019 letter to that effect, the ACLU protested that the bill would “unconstitutionally chill the speech of issue advocacy groups and nonprofits such as the ACLU, Planned Parenthood, or the NRA [National Rifle Association] that is essential to our public discourse and protected by the First Amendment.”
House Speaker Nancy Pelosi (D-CA) nevertheless announced last month that her caucus is “doubling down” on passing Sarbanes’s bill, which IFS has more fittingly dubbed the “For the Politicians Act.” Nonprofits like FreedomWorks and Eagle Forum, occasionally calling it the “Gag Act,” have encouraged citizens to voice their opposition to it at the grassroots level. Let’s hope they prevail.