Dems’ H.R.1 Contains at Least 7 Unconstitutional Provisions, Probably More, Cato Fellow Says

By Craig Bannister | April 27, 2021 | 1:09pm EDT
(Getty Images/Saul Loeb)

Democrats’ so-called “For the People Act,” H.R. 1, contains at least seven provisions that are definitely unconstitutional, some of which have already been declared so in court rulings – and there are probably many more – analysis by Cato Institute Senior Fellow Walter Olson reveals.

“H.R. 1 is the sprawling omnibus bill passed by the House on party lines that would assert federal control over dozens of areas related to elections, political speech, official ethics, and topics further afield,” Olson explains in a piece titled, “How Many of H.R. 1’s Provisions Are Unconstitutional?”

Olson’s answer: “Quite a few.”

In his analysis, Olson specifically examines seven examples of unconstitutional provisions that would squash free speech, force states to admit unqualified voters, diminish the autonomy of Supreme Court justices, and remove privacy rights:

  1. “The bill’s best known menace to the First Amendment arises from its threat to chill the speech of nonprofit organizations and advocacy groups that speak out on legislation.”
  2. The bill misapplies Article 1, Section 4 of the Constitution (the “Elections Clause”), which gives Congress authority over U.S. House and Senate elections, by expanding it to seize control of how states manage their presidential elections.
  3. It requires states to violate the 17th Amendment by admitting voters in Congressional races people who do not currently qualify to vote.
  4. H.R. 1’s “Redistricting Reform” requires all state governments to create independent citizen commissions charged with “micromanaging to an extreme degree” House districting.
  5. “A Provision purporting to require the federal judiciary to develop a code of conduct governing Supreme Court justices would run smack into the constitutional status of the Article III judiciary as an independent and coequal branch of government.”
  6. Presidential candidates would be required to release their tax returns, a provision Olson says would not be enforceable, given legal precedent overturning other laws seeking to place additional qualifications and burdens on candidates.
  7. H.R. 1 would require online platforms to keep public logs of advertisements about political issues.

This last provision is “a grab bag of progressive proposals” that liberals have pushed for years, which have failed to survive legal challenges. It is nearly identical to a 2018 Maryland law overturned by a Fourth Circuit panel that declared it “a content‐​based law that targets political speech” and a “compendium of traditional First Amendment infirmities.”

Olson closes by concluding that Democrats appear completely undaunted by the unconstitutionality of their H.R. 1 bill:

“To put it bluntly, the sponsors of H.R. 1 won’t even drop the parts of their bill that courts have already declared unconstitutional. I wonder whether they’re even trying to convince the rest of us.”

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