Eric Wang | Institute for Free Speech
Democrats in the House of Representatives passed H.R. 1 on a party-line vote on Friday morning. Their signature legislation purports to “shine a light on dark money in politics” and to “enhance [the] enforcement mechanisms” of the Federal Election Commission (FEC).
Ironically, campaign finance controversies surrounding Rep. Alexandria Ocasio-Cortez, the Democratic freshmen class superstar, illustrate the bill’s severe flaws.
First, there is H.R. 1’s “DISCLOSE Act” provision, which would force civic groups to file burdensome and often duplicative reports with the FEC for issuing public communications that purportedly “promote,” “attack,” “support,” or “oppose” candidates or elected officials. Public campaigns opposing Ocasio-Cortez’s “Green New Deal” or Bernie Sanders’ “Medicare for All” likely would trigger reporting.
The FEC reports would have to publicly identify groups’ donors, including their names and addresses. The effect, if not the intent, of this infringement on donor privacy will be to deter financial support to groups that dare to speak on such issues.
“Doxxing” — posting individuals’ personal information online in retaliation against their political activities — has become increasingly common in today’s polarized society. The aim is to encourage harassment and threats against the victims. H.R. 1 amounts to government facilitation of doxxing against private citizens exercising their core First Amendment rights.
H.R. 1 justifies this invasion of privacy in the name of countering so-called “dark money” — that is, independent groups speaking about government that are not required to publicly identify their donors. Which brings us to Ocasio-Cortez’s campaign finance issues. During a committee hearing on H.R. 1, Ocasio-Cortez curiously referred to “my special interest dark money-funded campaign.”
At the time, this appeared to be a hypothetical but ignorant argument for H.R. 1’s disclosure requirements. In hindsight, it may have been a Freudian slip.
Politicians like Ocasio-Cortez have been prohibited from running “dark money-funded campaigns” for the past 40-plus years. They must disclose all of their spending and contributions. Private organizations are not required to do so. This distinction exists because elected officials and candidates wield (or have the potential to wield) the enormous powers of government. Private organizations, no matter how powerful, merely have the power to petition and persuade government. Therefore, politicians must disclose their campaign finances to help deter and monitor against quid pro quo transactions. In short, disclosure requirements apply to politicians — not, as H.R. 1 would have it, to the people.
But it has come to light recently that Ocasio-Cortez and a top campaign aide (now her chief of staff) controlled the Justice Democrats PAC during her campaign that separately raised millions of dollars. Only about 2.5 percent of that money was reported as having been spent on direct support for candidates. Much of that money went to a consulting firm the campaign aide owned and ran. An FEC complaint has been filed alleging the firm impermissibly obscured much of the PAC’s spending. Perhaps Ocasio-Cortez’s “dark-money funded campaign” wasn’t hypothetical after all.
Another FEC complaint alleges the consulting firm was used to pay Ocasio-Cortez’s boyfriend in violation of rules against “personal use” of campaign funds. Other questionshave been raised over whether Ocasio-Cortez and her campaign aide’s control over the Justice Democrats PAC was illegal in and of itself, and which could prompt yet a third FEC complaint.
This brings us to another one of H.R. 1’s many dangerous provisions: politicization of the FEC and weakening of due process. H.R. 1 would restructure the current six-member bipartisan agency into a five-member agency susceptible to partisan control. The agency’s chairperson and general counsel also would have more power to launch investigations unilaterally. This would invite the type of political abuses at the IRS overseen by Lois Lerner (who previously was the FEC’s enforcement chief).
Imagine if a Trump-appointed FEC chairperson were to unilaterally order an investigation into the allegations against Ocasio-Cortez. That’s not possible today, but H.R. 1 would permit a future chairperson to do just that. And even if it ultimately turns out Ocasio-Cortez has good defenses, the impartiality of a partisan-controlled FEC in fairly resolving the charges against her would be highly suspect.
H.R. 1 is the proverbial solution in search of a problem. Its disclosure requirements erroneously target private groups when the real “dark money” concern always has been over candidates and elected officials. Its attempt to “fix” the FEC would instead lead to suspicions about whether “the fix is in” for those who must answer to the agency’s enforcement powers.Ocasio-Cortez’s campaign finance controversies ironically demonstrate why H.R. 1 is so misguided.
Eric Wang is a political law attorney and senior fellow with the nonprofit Institute for Free Speech.