March 12, 2019

H.R. 1: Federalizing Elections and Chilling Speech


  • House Democrats’ massive, costly election “reform” bill would impose unprecedented federal control over how states administer elections and would build vast new regulatory schemes.
  • The bill would mandate massive changes in voter registration while making it harder to ensure registration lists are accurate, thereby encouraging fraud.
  • Even the American Civil Liberties Union has criticized H.R. 1’s unconstitutional chilling of political speech by forcing extensive donor disclosures.

Democrats’ massive new bill – H.R. 1 – would give the federal government unprecedented control over U.S. election administration. The legislation, which passed the House last week on a 234-193 party-line vote, would chill political speech and weaken the security that comes from diverse state systems. Instead of incrementally improving election infrastructure and technology in cooperation with states, the bill would federalize the electoral system that has evolved over the past 230 years, at a high, unfunded cost to the states. Among other things, it:

  • Effectively ends registration deadlines (sec. 1031) and requires states to count ballots that are cast out of county and out of precinct (sec. 1601);

  • Restricts the process by which states maintain their voter rolls (secs. 1041 and 2502);

  • Allows all felons, regardless of their crime, to vote after release from prison (sec. 1402); and

  • Forces states to abandon any form of voter identification law (sec. 1904).

HR1_Obama Quote

Many requirements imposed on states by the federal government under H.R. 1 are ill-defined, expensive, and prone to failure. For example, the bill requires states to implement automatic voter registration systems at any state agency that can determine eligibility, colleges, universities, and secondary schools, and with any application for service or aid. It vastly expands a program implemented by some states that has led to incidents of erroneous registrations. The bill would require states to automatically register children as young as 16.

While voter participation should be encouraged, it is irresponsible to abruptly change electoral systems in major ways that could undermine electoral integrity. As President Obama noted in 2016, the diversity of state-run election procedures is part of what makes rigging a nationwide vote effectively impossible. Upending that system increases the risk of error.

restrict speech, send federal funds to campaigns

In addition to the major shift in responsibility from states to the federal government, H.R. 1 changes federal campaign finance law in ways that would chill speech while diverting federal funds to candidates’ campaigns via a government match of small-donor donations.

Title V of the bill would require the federal government to provide $6 for every dollar a campaign raises from small donor contributions. Based on 2018 figures, it could amount to nearly $5 million for general election candidates. Taxpayers would be forced to support candidates, often against their wishes, as long as the candidates met basic thresholds in their fundraising.

While expanding the public financing of campaigns, H.R. 1 would chill political speech of private citizens and advocacy groups by expanding the types of communication that are regulated by the Federal Election Commission. Communications could be deemed “campaign related” for mentioning an elected official or policy position. Donors would be subjected to increased disclosure, raising the risk of intimidation and harassment.

The bill’s restrictions are so severe that the American Civil Liberties Union has said they “unconstitutionally infringe the freedoms of speech and association.” The ACLU criticized the forced disclosure of donor information by groups like NRA and Planned Parenthood, saying the bill’s provisions would force “groups to make a choice: their speech or their donors.” 

Politicians would also answer to a less neutral FEC under H.R. 1, which would change the evenly divided six member commission to five members, opening the door to partisan control. The newly politicized FEC could further chill speech by partisan interpretation of the bill’s new requirements.

Issue Tag: Judiciary