Congress moves to protect free speech from bureaucratic assault

Seven provisions of the deal will help encourage more speech or put a halt to various efforts to increase regulation of political speech via the executive branch. After years of losing at the Supreme Court, in Congress and at the Federal Election Commission, those who wish to limit speech under the guise of campaign finance “reform” have increasingly focused their efforts on pressuring administrative agencies to achieve through regulation what could not be won via legislation. Through these seven provisions, Congress put a stop to much of this nonsense.

The riders may seem relatively unassuming, but they are in fact a major victory. Threats to speech increasingly originate from the executive branch, most prominently during the IRS targeting scandal. Years of urging from “reform” groups and thin-skinned politicians duped the IRS into playing the role of speech police, with predictably disastrous results. The agency discriminated against conservative groups applying for tax-exempt status on the basis of their names and political beliefs, with no regard for the First Amendment.

Congress sought to prevent such abuse in the future; the omnibus prohibits the agency from working on new speech regulations over the coming year.

The IRS was not alone, however, in being pushed outside its duties to regulate speech. The Securities and Exchange Commission and others faced similar pressure from activist groups to join the fray. These agencies lack the expertise — and often the authority — to regulate political speech, which may be why “reformers” target them. The FEC is equipped to spot unconstitutional proposals, and usually refuses to act on them.

Rather than leave our First Amendment rights up to whichever bureaucrat decides to take up the call of regulating political speech, Congress wisely decided to end the funny business. Provisions of the omnibus signed into law last week also prohibit the SEC from issuing the regulations that “reformers” are asking for.

They further prohibit the president from issuing an executive order requiring companies to report their federal election campaign donations, which are already publicly disclosed, as part of the process for bidding on government contracts; clarify that the IRS may not attempt to stifle speech by collecting the Gift Tax on donations to organizations advocating for social change; forbid IRS employees from conducting government business on personal email addresses; and require that employees be fired if they discriminate against groups or individuals on the basis of political belief.

Several of these provisions — most pointedly the requirement that government business be conducted over government email — are clearly a response to the actions of Lois Lerner, the IRS official at the center of the scandal whose use of a personal email address resulted in missing emails that frustrated investigators. But the IRS’s hostility towards free speech did not end with Lerner’s resignation. Instead, it sought to make restrictive speech rules official IRS policy, proposing harsh new rules that would have silenced many nonprofit advocacy groups during election years.

Those rules were withdrawn in the face of overwhelming, bipartisan opposition, but the IRS promised to try again and potentially apply the new rules to an even broader swath of groups. By denying funding for the development of new rules, Congress ensures that if new rules are written, it will be by the next president.

Many have bemoaned these changes as preventing much-needed regulation to police political campaign speech, but the notion that America’s campaign finance system is under-regulated is a myth born out of historical ignorance. Campaign finance regulation is more extensive today than at any point in American history, made up of over 376,000 words of regulation plus 1,900 federal advisory opinions and explanations of the rules. That just covers federal law; states also have their own extensive campaign finance regulations.

To truly level the playing field, the rulebook must be trimmed and simplified so that everyone can speak without having to first hire an attorney. If things are not simplified, many people won’t be able to speak, or will choose not to. That isn’t how democracy should function and it’s not what the founders intended when they wrote the First Amendment.

Congress, rarely the hero these days, deserves credit for stepping up. With the omnibus deal, it has effectively implemented a corollary to the First Amendment: Bureaucrats shall write no regulation abridging the freedom of speech.

Luke Wachob is the McWethy Fellow at the Center for Competitive Politics in Alexandria, VA. Thinking of submitting an op-ed to the Washington Examiner? Be sure to read our guidelines on submissions.