On her recent visit to China, First Lady Michelle Obama spoke movingly in defense of free expression, noting that in the United States, she and President Obama are frequent targets of criticism—and she wouldn’t have it any other way.
“It's not always easy, but we wouldn't trade it for anything in the world,” the first lady said in a speech that won plaudits. “Because time and again, we have seen that countries are stronger and more prosperous when the voices of and opinions of all their citizens can be heard.”
It was a powerful endorsement of one of the foundational values of the American political system. And it should serve as a reminder to those in the United States who seek to undermine that rich tradition by clamping down on the free speech rights of business leaders in public debates.
Among the key offenders: the federal government. In recent years, the business community has found itself on the receiving end of a campaign to silence political speech—a campaign misleadingly packaged as “reform.”
Proposed IRS Rules to Censor Political Speech
In late 2013, the Treasury Department proposed new regulations that would constrain the constitutionally protected political speech of 501(c)(4) nonprofit civic groups by giving the IRS regulatory power over what constitutes acceptable political speech.
Given the agency’s admission last year that IRS employees had subjected conservative organizations to inappropriate additional scrutiny, the proposed rules have sparked serious concern: through the end of February, the IRS received more than 140,000 comments from the public on the rules.
“This administration should know better than to use the IRS as a stalking horse to silence the speech of nonprofit civic groups with which it might disagree, and to even think it might do so before the midterm elections,” Lily Fu Claffee, general counsel of the U.S. Chamber, wrote in February.
But it’s not just the business community that would be affected by this restriction on speech, as many people across the ideological spectrum have come to grasp. The proposed IRS rules have received objections from a wide range of groups, including the U.S. Chamber of Commerce, the American Civil Liberties Union (ACLU) and environmental groups. These groups realize that restrictions on one organization today could be turned on others tomorrow, and that the proposed rules create a climate of fear surrounding political involvement.
“The proposed [IRS] rules could pose a significant chilling effect on issue advocacy engaged in by many nonprofits,” ACLU legislative counsel Gabe Rottman writes. “They would also disproportionately affect small, poor nonprofits that cannot afford the legal counsel to guarantee compliance with the new rules. We fear that faced with such uncertainty, and needing to maintain their (c)(4) status, they would opt to just keep their mouths closed, so to speak.”
Curtailing Employers’ and Workers Rights in Union Organizing Campaigns
But government attempts to silence the business community aren’t always as direct as the IRS rules. For example, consider the NLRB’s renewed push for the “ambush election” rule intended to make it easier for labor unions to organize workplaces. The NLRB’s pro-union bias is perhaps no surprise, but the attempt to curtail business owners’ and managers’ ability to communicate with employees is deeply alarming.
By dramatically shortening the timeframe for a union election from the current average of 38 days to as few as 10 days (hence the “ambush” in the name), the NLRB’s rule would make it impossible for a business to provide adequate information to workers about the potential effects of union organization on the workplace.
“If adopted, the proposed regulation would severely hamper an employer’s right to exercise free speech during union organizing campaigns and cripple the ability of employees to learn the employer’s perspective on the impact of collective bargaining on the workplace,” Stephen Brown, human resources director for the Ohio restaurant chain LaRosa’s, testified to the House Education and Workforce Committee on March 5. “Finally and equally troubling is that the NLRB is proposing this regulation absent any evidence that it is needed.”
DISCLOSE ACT
While federal agencies pursue speech restrictions through the rulemaking process, members of Congress are doing their part to constrain opposition voices as well. The Democracy Is Strengthened by Casting Light On Spending in Elections (DISCLOSE) Act would demand unprecedented levels of disclosure from outside advocacy groups and corporations that share information with voters during elections.
The law’s unwieldy and Orwellian title may have been carefully crafted to sound innocuous and reassuring—who could be against “strengthening democracy?” But the DISCLOSE Act represents a direct attack on the business community’s right to participate in the political process. Although the bill purports to strike a blow for transparency and disclosure of donors to issue advocacy organizations, it does so on a highly selective basis.
For example, labor unions are exempted from the law’s heavy-handed requirements—suggesting that the bill’s supporters are less interested in transparency than in crippling one side of the debate. Though the DISCLOSE Act was defeated in 2010 and 2012, it has been reintroduced in the current Congress by Rep. Chris Van Hollen (D-Md.).
It’s a truism among free speech defenders that the best response to speech you disagree with isn’t censorship—it’s more speech. Yet each of the above measures represents a significant government attempt to restrict the constitutionally protected rights of the business community, thereby suppressing the free flow of ideas.
The First Amendment to the U.S. Constitution states that “Congress shall make no law…abridging the freedom of speech, or of the press, or of the people peaceably to assemble, and to petition the Government for a redress of grievances.” But as Washington aggressively tests the limits of that stricture, those who care about free speech—and not just for the speech they agree with—should be vigilant.
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