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How Congress Plans to Eviscerate Free Speech in the Name of “The People”

March 5, 2021

In the first act of Congress under the Biden Administration, the freedom of speech is under attack. The deceptively named “For the People Act” (H.R. 1 and S. 1) purportedly protects Americans’ voting rights by imposing sweeping federal mandates over locally managed state elections. As dangerous as that is, tucked inside the nearly 800-page bill is a Trojan Horse that will eviscerate the First Amendment by forcing non-profits to publicly disclose private information about their donors — discouraging people from speaking and supporting organizations like the Goldwater Institute.

Long a top priority of the left, this anti-speech assault is designed to eliminate opposition to a radical policy agenda that would transform America. As former Vice President Mike Pence wrote, “Every single proposed change in H.R. 1 serves one goal, and one goal only: to give leftists a permanent, unfair, and unconstitutional advantage in our political system.”  

The Goldwater Institute co-signed a letter to Congress strongly condemning the proposed legislation:

“H.R. 1 and S. 1 would dramatically alter the First Amendment protections that Americans have enjoyed since the founding of our country. It would institute sweeping new burdens on their constitutionally protected rights to freely speak, publish, and organize into groups to advocate for the causes they support. In particular, H.R. 1 and S. 1 would impose onerous and unworkable regulatory standards on the ability of individual Americans and groups of Americans to discuss the policy issues of the day with elected officials and the public. This bill would also violate the privacy of advocacy groups and their supporters and stringently and excessively regulate political speech on the Internet.”

More specifically, the proposed law would include numerous, sweeping provisions that would violate the First Amendment rights of Americans by:

•           Subjecting citizens who contribute to nonprofit organizations to harassment and intimidation by making their personal information available in a searchable government database.

•           Policing speech by Americans about legislative issues by expanding the definition of “electioneering communications” – historically limited to large-scale TV and radio campaigns targeted to the electorate in a campaign for office – to include online advertising that bears no relation to an election.

•           Indiscriminately regulating groups that incidentally or occasionally advocate on federal judicial nominations and require those groups to broadly expose their donors, even if those citizens had nothing to do with the groups’ speech about judicial nominees.

•           Forcing groups to publicly identify their supporters on the face of the ads themselves.

•           Expanding the universe of regulated online political speech by Americans beyond paid advertising to include communications on groups’ or individuals’ own websites and email messages.

•           Deterring American citizens from serving their country through political appointments by forcing them to disclose their donations to causes they have supported in the past.

The assault on the First Amendment is not just happening in Congress. Cities and states across the country are enacting laws that require nonprofit groups to disclose their donors’ names, addresses, and other information any time those groups spend even modest amounts of money to communicate with voters. In this era of cancel culture, the publication of that information can lead to donor intimidation and results in a chilling effect on speech.

In addition to standing strong against this latest intolerable act by Congress, the Goldwater Institute is taking action in capitols and courtrooms to defend donor privacy and the freedom of speech. Goldwater’s Scharf-Norton Center for Constitutional Litigation has filed lawsuits against cities including Denver and Santa Fe challenging local ordinances that mandate the disclosure of donor information. In 2018, Arizona enacted a Goldwater Institute law that preempts cities from demanding lists of nonprofit donors, thereby boosting privacy protections for nonprofits and nonprofit donors.

Meanwhile, the Supreme Court is poised to decide a crucial case involving the privacy rights of people who donate to nonprofit groups. In a brief filed last month, the Goldwater Institute and the Rio Grande Foundation argue that a California rule that forces nonprofit groups to turn over confidential donor information to the state violates the First Amendment by exposing donors to retaliation and even violence.

You can read more about that case here and the Goldwater Institute’s letter to Congress condemning the “For the People Act” here.



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