Nonetheless, the bill, which House members are expected to vote on this week, contains significant flaws that are detrimental to the health of our democracy and will likely have unintended consequences on the political rights of noncitizen immigrants as well as many nonprofits, including civil rights organizations and other civil liberties movement builders. The House can and must fix these concerns before final passage.
H.R. 1, in an attempt to find a solution to the problem of “dark money,” requires public disclosure of the names and addresses of donors who give $10,000 or more to organizations that engage in “campaign-related disbursements,” which could include paid political speech that discusses a public issue such as immigrants’ rights, voting rights or reproductive freedom if the communication merely mentions a candidate for public office. That means an ad criticizing House Speaker Nancy Pelosi (D-Calif.) for supporting immigration reform or criticizing Sen. Ted Cruz (R-Tex.) for opposing the Equality Act could trigger disclosure of donors that gave $10,000 or more.
Why should H.R. 1’s sponsors and supporters care? Because it could directly interfere with the ability of many to engage in political speech about causes that they care about and that impact their lives by imposing new and onerous disclosure requirements on nonprofits committed to advancing those causes.
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. Moreover, in the time of social media, there is heightened interest in who is supporting these efforts.
For example, many people last year called for an investigation into who was “funding” Black Lives Matter demonstrations in Louisville, after videos showed a man distributing protest signs and other provisions to protesters. Presumably, the purpose of such an investigation would be to accuse donors supporting the protest of wrongdoing. Indeed, following the wave of racial justice protests over the summer, the Justice Department launched an inquiry into who “funded” protests, as though opposing police violence was a crime. Those organizations seeking to aggressively advance civil rights and civil liberties through paid communications about issues of public importance should not be deterred from doing so because the government may force public disclosure of their supporters’ identities.
That is why the Supreme Court, in NAACP v. Alabama, 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. 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.
Exposure to threats of harassment or violence for nonprofit donors is not the only First Amendment problem with the bill. H.R. 1 would also expand a prohibition on paid advocacy at the federal, state and local level by “foreign nationals,” which includes, DACA recipients, asylum seekers, temporary protected status holders and many other noncitizens. What is the purpose of inhibiting such people from participating in political speech to advance policies that directly affect their lives? Everyone in this country — including immigrant communities — has a stake in our country’s immigration policies, how we distribute pandemic relief, education policy and many other issues.
H.R. 1 can easily be fixed to protect against these infringements on political speech. We hope Congress does the right thing to protect the health of our democracy by fixing these flaws in the bill so that President Biden can sign into law the strongest bill possible.