Yesterday, the Committee on House Administration marked up the SHIELD Act (H.R. 4617, Stopping Harmful Interference in Elections for a Lasting Democracy Act). The SHIELD Act contains the provisions of the Honest Ads Act, plus additional dangerous provisions.
If passed, it would likely have very little effect on foreign efforts to influence or interfere with U.S. elections. Instead, it would regulate Americans seeking to exercise their First Amendment rights, with the effect of restricting political speech.
The RNLA sent a letter to the House opposing the SHIELD Act:
[T]he Honest Ads Act requirements would not prohibit most of the disruptive activities engaged in by foreign nationals leading up to the 2016 election. Those activities, such as the efforts by the Russian Internet Research Agency, were largely accomplished through free social media posts, not the paid advertisements that would be regulated by the Honest Ads Act, and many did not reference a candidate. Those foreign posts that were paid advertisements that referenced a candidate are already subject to reporting and disclaimer requirements that the foreigners violated.
As Ranking Member Rodney Davis pointed out during yesterday’s markup, foreign actors’ intent on interfering with our elections did not comply with the existing requirements in 2016, and they would similarly not comply with the requirements of the SHIELD Act if it were passed. Instead, the regulatory burdens would fall on law-abiding American candidates, citizens, and organizations and the liability for foreign advertisements would be placed on American media and advertisement platforms.
The letter noted that Maryland and Washington already passed laws similar to the Honest Ads Act, causing both Facebook and Google to stop selling political ads for Washington elections and Google to stop selling ads for Maryland elections. After a group of newspapers led by The Washington Post sued, a U.S. district judge enjoined the law for violating the First Amendment under both strict and exacting scrutiny analyses:
Our federalist system allows the states to be incubators for democracy: individual states can try a particular system or reform to evaluate how it works in practice, allowing other states and the national government to learn from their mistakes and successes before implementing a similar policy. In the Honest Ads Act portion of the SHIELD Act, instead of learning from the experience of the states, Congress is attempting to replicate their mistakes on a national level.
There are many other problems with the SHIELD Act described in the letter, and part of the purpose of the Act, as made clear in the House Admin majority's two-page summary, is to resist President Trump, but Americans engaging in the political process will be the ones who are harmed:
These are simply some of the issues with the SHIELD Act in its current form. As Ranking Member Davis noted at the outset of yesterday’s markup, the SHIELD Act, and the Honest Ads Act contained in it, is not a serious effort to prevent foreign interference in our elections. It is part of the larger effort to resist President Trump, respond to his alleged activities in 2016, and move toward impeachment proceedings. Instead of impacting President Trump or foreign bad actors, the SHIELD Act would have the greatest effect on Americans engaging in political speech.
Thanks to House Admin Ranking Member Rodney Davis for pointing out the many flaws in the SHIELD Act during yesterday's markup and bringing a voice of reason to the House where the Democrats are intent on resisting the President even at the expense of Americans' rights.