Jennifer Popik, J.D. | 03 March 2022

When the Democrats focus on so-called voting and election reform, pro-life Americans should listen closely.  The current push to enact federal voting and election reform in Congress has been widely publicized by the media.  As one reporter puts it, “As Republicans impose new restrictions on ballot access in multiple states, President Biden has no easy options for safeguarding voting rights despite rising pressure from frustrated activists.”[1]

Despite this effort to cast Democrat efforts as a response to Republican state efforts, this push to federalize election laws is not new, and has far-reaching dangerous implications to the free speech rights of Americans, including pro-lifers.

The most recent effort in Congress focused on H.R. 5746, the so-called “Freedom to Vote Act.”[2]  There was a great deal of media coverage of this vote, as Senate Majority Leader Chuck Schumer (D-NY) used this vote to try and create a carve-out to circumvent the filibuster, wherein 60 votes are needed to limit debate and move to a final vote on the bill. As the New York Times described,

Senate Democrats made an impassioned case on Wednesday for legislation to counter an onslaught of new voting restrictions around the country, but they failed to overcome a Republican blockade or unite their own members behind a change in filibuster rules to pass it….Republicans aggressively fought both the voting measure and the attempt to weaken the filibuster. They accused Democrats of manufacturing a crisis by exaggerating the impact of new state laws in an effort to realize a longstanding goal of gaining more control over state elections — and risking the uniqueness of the Senate to do so.”[3]

The accusations of manufacturing a crisis ring true in the sense that Democrats have included a decade-old, long-stalled piece of legislation known as the “Disclose Act” within the nearly 600 page broader recent “Freedom to Vote Act.”[4]  For the past 12 years, this legislation has taken various forms including the “For the People Act”[5] in addition to the “Freedom to Vote Act” and the “Disclose Act.”  In short, these efforts are not new, no matter what name the bill may have today.

The “Disclose Act” has been long-stalled not only due to the make-up of Congress, but the opposition of liberal and conservative organizations alike.  The common thread has been that the sort of Federal restrictions contained in the “Disclose Act” would trample free speech.

This “Disclose” legislation and its successors came from Democrats in response to a series of landmark U.S. Supreme Court First Amendment rulings, culminating in FEC v. Wisconsin Right to Life, 551 U.S. 449 (2007) and Citizens United v. Federal Election Com’n, 558 U.S. 310 (2010). These cases were significant in applying First Amendment protections to political speech.

This sort of legislation would not be a curb on perceived political corruption but is itself a type of corruption – an abuse of the lawmaking power by which incumbent lawmakers employ the threat of criminal sanctions, among other deterrents, to reduce the amount of private speech regarding the actions of the lawmakers themselves.

The prime concerns relate to two main points: 1. the ability of a pro-life, or any, group to advocate and 2. the ability of small donors to groups to remain private.

Even the American Civil Liberties Union (ACLU) has expressed strong opposition to the free speech elements.  In a letter to Congress from 2019, they write:

The upshot of the DISCLOSE Act, and the essence of why we oppose it, is that it would chill the speech of issue advocacy groups and non-profits such as the ACLU, Planned Parenthood, or the NRA that is essential to our public discourse and protected by the First Amendment. These groups need the freedom to name candidates when discussing issues like abortion, health care, criminal justice reform, tax reform, and immigration and to urge candidates to take positions on those issues or criticize them for failing to do so. The DISCLOSE Act interferes with that ability by impinging on the privacy of donors to these groups, forcing the groups to make a choice: their speech or their donors. Whichever they choose, the First Amendment loses.[6] 

There is very little in these bills, despite the promise to “Disclose,” that is actually intended to provide useful or necessary information to the public. The overriding purpose is precisely the opposite: To discourage, as much as possible, disfavored groups (such as pro-life organizations) from communicating about officeholders, by exposing citizens who support such efforts to harassment and intimidation, and by smothering organizations in layer on layer of record keeping and reporting requirements, all backed by the threat of civil and criminal sanctions.

Speech-Restrictive Provisions

These election bills would codify a vague and expansive definition of “the functional equivalent of express advocacy,” that applies to communications that “when taken as a whole, it can be interpreted by a reasonable person only as advocating the election or defeat of a candidate for election for Federal office.”[7] There is little that an organization could say by way of commentary on the votes or positions taken by an incumbent member of Congress that would not fall within this expansive definition, in the eyes of some “reasonable person” – most often, an annoyed incumbent lawmaker or his operatives.

The time periods over which the government would have authority to regulate speech about those who hold or seek federal office – so-called “electioneering communications” – would be dramatically expanded under these types of election bills.  If a pro-life group wanted to simply state how members voted on a piece of abortion legislation, this would trigger serious restriction usually reserved for campaigns.  Similarly, if a pro-life advertisement that was talking about adoption as an alternative to abortion, it would be nearly impossible to run close to an election.

These election bills also contain additional provisions that would place an unacceptable burden on the exercise of First Amendment rights. They mandate burdensome disclaimers on television, radio, and online advertisements that are likely to bury the substantive message and make some advertising, especially online, functionally impossible.[8]

Disclosure of Donors

Also, members and supporters of organizations have a right to support public advocacy about important and controversial issues without having their identifying information posted online, exposing them to harassment or retribution by those who may disagree with their beliefs.

In a piece from the Institute for Free Speech, titled “’For the People Act’ Replete with Provisions for the Politicians,”

The right to associate oneself with a nonprofit group’s mission and to support the group financially in private is a bedrock principle of the First Amendment that the government may not abridge casually. This is particularly true when the cause is contentious, such as abortion, gun control, LGBTQ rights, or civil rights, and association with either side on any of these issues may subject a member or donor to retaliation, harassment, threats, and even physical attack, as recent events have tragically reminded us. The potential divisiveness of these issues does not diminish their social importance and the need to hash out these debates in public while preserving donors’ privacy.[9]

The real purpose of such burdensome requirements is not to inform the public, but to deter potential donors from financially supporting the work of groups, including prolife groups. In short, when you see Federal Legislation to push to federalized voting and election laws, be aware of the dangerous implications to the free speech rights of Americans, including pro-lifers.

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[1] Long, C., Megerian, C., Balsamo, M. (2022, February 12). On voting rights, Biden’s power to act on his own is limited. AP News.  https://apnews.com/article/voting-rights-immigration-us-supreme-court-voting-elections-11e5e3451464cceef4fdbad817e02915

[2] H.R.5746 – 117th Congress (2021-2022): Freedom to Vote: John R. Lewis Act, H.R.5746, 117th Cong. (2022), https://www.congress.gov/bill/117th-congress/house-bill/5746

[3] Hulse, C. (2022, January 19). After a day of debate, the voting rights bill is blocked in the Senate.

New York Times. https://www.nytimes.com/2022/01/19/us/politics/senate-voting-rights-filibuster.html

[4] H.R.5175 – 111th Congress (2009-2010): DISCLOSE Act, H.R. 5175, 111th Congress (2010), https://www.congress.gov/bill/111th-congress/house-bill/5175

[5] H.R.1 – 117th Congress (2021-2022): For the People Act, H.R.1, 117th Cong. (2021), https://www.congress.gov/bill/117th-congress/house-bill/1

[6] Newman, R., Ruane, K. Letter to House Rules Committee. "H.R. 1, the For the People Act of 2019." 1 March 2019. https://www.aclu.org/sites/default/files/field_document/2019-03-01_aclu_letter_to_house_rules_committee_on_h.r._1.pdf

[7] See page 431 Freedom to Vote: John R. Lewis Act, H.R.5746, 117th Cong. (2022), https://www.congress.gov/bill/117th-congress/house-bill/5746

[8] Id. at pp. 466-477, §§ 6107-6108.

[9]Wang, E. (2019, January 23). “For the People Act” Replete with Provisions for the Politicians. IFS. 11e5e3451464cceef4fdbad817e02915 https://www.ifs.org/expert-analysis/analysis-of-h-r-1-part-one/

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