Section 1 Short title
This Act may be cited as the “No Political Enemies Act”.
No Political Enemies Act
A BILL
To stop the Government from attacking individuals and organizations for their political speech or participation.
Sec. 2 Findings
Congress finds the following:
Congress has not delegated to the President the ability to designate an entity as a domestic terrorist organization.
The President does not have inherent authority under article II of the Constitution of the United States to designate an entity as a domestic terrorist organization.
The First Amendment to the Constitution of the United States explicitly guarantees the freedom of speech, freedom of the press, the right to peaceably assemble, and the right to petition the government for a redress of grievances.
No Federal employee, including the President and the Vice President, may violate the constitutional rights of any person or group of people.
Sec. 3 Definitions
In this Act:
Covered enforcement claim— The term covered enforcement claim means a claim brought by the Federal Government alleging a violation of Federal civil or criminal law (including regulations).
Covered Federal official— The term covered Federal official means an officer or employee of the executive branch of the Federal Government, including the President, the Vice President, and an officer or employee of an independent agency of the executive branch of the Federal Government.
Covered Government action— The term covered Government action—
means an exercise of an investigative, regulatory, or enforcement authority under any Federal civil or criminal law (including regulations) against a specific covered person, without regard to whether the exercise of authority is self-executing or requires additional compulsory or judicial process;
includes an investigative, regulatory, or enforcement action that is taken without legal authority; and
does not include an action taken against a Federal officer or employee with respect to their employment with the Federal Government.
Covered person— The term covered person means—
a domestic entity; or
an individual who is—
a citizen or national of the United States;
an alien lawfully admitted for permanent residence to the United States; or
present in the United States or its territories.
Domestic entity— The term domestic entity means an entity organized under the laws of the United States or any State or territory thereof (including any branch of such an entity located outside the United States).
Protected speech or participation— The term protected speech or participation means all constitutionally protected speech, including criticism, dissent, or other protected speech, expression, or association.
Substantially motivated by protected speech or participation—
In general— The term substantially motivated by protected speech or participation means that the applicable protected speech or participation is a motivating factor, but shall not require that the protected speech or participation be the sole or primary reason for the covered Government action or covered enforcement claim.
Laws regulating political speech— A covered Government action or covered enforcement claim is not substantially motivated by protected speech or participation solely because the action or claim is brought pursuant to a statute, regulation, or other authority that directly regulates political speech or participation, including—
section 2003 or 2004 of the Revised Statutes (52 U.S.C. 10102, 10101);
the Voting Rights Act of 1965 (52 U.S.C. 10301 et seq.);
the Voting Accessibility for the Elderly and Handicapped Act (52 U.S.C. 20101 et seq.);
the Uniformed and Overseas Citizens Absentee Voting Act (52 U.S.C. 20301 et seq.);
the National Voter Registration Act of 1993 (52 U.S.C. 20501 et seq.);
title III of the Civil Rights Act of 1960 (52 U.S.C. 20701 et seq.);
the Help America Vote Act of 2002 (52 U.S.C. 20901 et seq.); and
titles III and IV of the Federal Election Campaign Act of 1971 (52 U.S.C. 30101 et seq.).
Sec. 4 General prohibition on political targeting
No covered Federal official may initiate or direct a covered enforcement claim or a covered Government action against a covered person that is substantially motivated by protected speech or participation or otherwise to suppress, burden, or punish protected speech or participation.
Sec. 5 Affirmative defense for political targeting
In general— It shall be an affirmative defense to any covered enforcement claim that the claim brought against the applicable covered person was substantially motivated by the protected speech or participation of the covered person.
Procedures— If, at any time after the Government initiates a covered enforcement claim, a covered person presents substantial evidence that protected speech or participation is or was a motivating factor in the covered enforcement claim, including the underlying investigation or other pre-enforcement activities—
the court—
shall order expedited discovery reasonably related to the alleged motivations of the Government for pursuing the covered enforcement claim; and
may, if the Attorney General files an affidavit under oath that any materials responsive to a discovery request under subparagraph (A) are privileged, review in camera and ex parte such materials; and
the Government shall bear the burden of proving by clear and convincing evidence that—
legitimate grounds unrelated to protected speech or participation by the covered person justify the covered enforcement claim; and
the covered enforcement claim was not substantially motivated by the protected speech or participation of the covered person.
Relief— If the Government does not meet the burden of proof under subsection (b)(2), the court shall dismiss the covered enforcement claim or otherwise award appropriate relief to ensure that no covered enforcement claim substantially motivated by protected speech or participation is able to proceed.
Sec. 6 Civil action to seek an injunction against political targeting
In general— A covered person may bring a civil action in an appropriate district court of the United States or the United States District Court for the District of Columbia seeking injunctive or other equitable relief against a covered Federal official who, and any Federal agency in the executive branch that, has taken, is taking, or imminently will take a covered Government action substantially motivated by the protected speech or participation of the covered person.
Basis for relief—
In general— A civil action under subsection (a) lies whenever a covered Government action causes or is likely to cause imminent or actual ongoing harm to a covered person.
Establishing a basis for relief— For purposes of establishing a basis for relief—
a violation of the rights of a covered person under the First Amendment to the Constitution of the United States shall be sufficient to establish harm warranting injunctive or other equitable relief; and
if a covered person demonstrates a likelihood of success in showing that the covered person is the subject of a covered Government action substantially motivated by protected speech or participation, that shall be sufficient to establish irreparable harm for purposes of emergency, temporary, or preliminary injunctive relief.
Jurisdiction of courts— The Federal courts shall have jurisdiction of a civil action under subsection (a) without regard to section 1346(a), 2342, or 2349 of title 28, United States Code, section 701(a) of title 5, United States Code, or section 242 of the Immigration and Nationality Act (8 U.S.C. 1252).
Authority To order injunctive relief relating to tax assessments or collections— A Federal court may issue an injunction in a civil action under subsection (a) to restrain the assessment or collection of a tax, without regard to section 7421 of the Internal Revenue Code of 1986, if the covered person seeking the injunction demonstrates that the action of the Government seeking to deny, investigate, or revoke the tax-exempt status of the covered person is substantially motivated by protected speech or participation.
Sec. 7 Civil action for damages for political targeting
In general— A covered person may bring a civil action in an appropriate district court of the United States or the United States District Court for the District of Columbia against a covered Federal official seeking damages if—
the covered Federal official knowingly initiated or directed a covered Government action against the covered person that was substantially motivated by the protected speech or participation of the covered person; and
the rights of the covered person under the Constitution of the United States were violated in connection with the covered Government action.
Abrogation of immunity— To the maximum extent permitted by the Constitution of the United States, a covered Federal official against whom a civil action is brought under subsection (a) shall not have immunity except as set forth in subsection (c).
Statutory immunity— A covered Federal official shall be immune in a civil action under subsection (a) if—
the covered Federal official acted in good faith; and
any speech, expression, or association motivating the covered Government action clearly was not protected under the Constitution of the United States.
Limitation on indemnification— The United States may not indemnify a covered Federal official in connection with a civil action under subsection (a), unless—
the court determines that the requirements of immunity under subsection (c) are satisfied; or
indemnification is necessary for complete relief because—
the person bringing the civil action requests that the United States be required to pay any judgment or attorneys fees awarded in order to allow for full recovery; and
the covered Federal official demonstrates an inability to pay the full amount awarded.
Construction— Nothing in this section shall be construed to invalidate, limit, or otherwise adversely affect any other judicially or statutorily created claims, remedies, rights, or procedures.
Sec. 8 Attorneys fees and costs for meritless political targeting
Definition— In this section, the term substantially prevailed, with respect to a party, means that the party has obtained relief through—
a judicial order or an enforceable written agreement or consent decree;
a voluntary or unilateral change in position by the Federal Government, if the claim of the party opponent is not insubstantial; or
preliminary or permanent injunctive relief from the covered Government action that is not ultimately overturned.
Award— In connection with any proceeding in a Federal court relating to a covered Government action or covered enforcement claim, including a proceeding under section 5, 6, or 7, the court may order the United States to pay reasonable attorneys’ fees and costs to a party opponent if—
with respect to a covered Government action or covered enforcement claim under criminal law—
the prosecution was dismissed, the defendant was found not guilty, or pre-enforcement activities were enjoined by a court; and
the party demonstrates that the covered Government action or covered enforcement claim was substantially motivated by protected speech or participation by the party; or
with respect to a covered Government action or covered enforcement claim under civil law, the party—
has substantially prevailed; and
demonstrates that the covered Government action or covered enforcement claim was substantially motivated by protected speech or participation by the party.
Exemption from limits on attorney fees and costs— Notwithstanding section 2678 or 2412 of title 28, United States Code, section 3006A of title 18, United States Code, section 617 of the Departments of Commerce, Justice, and State, the Judiciary, and Related Agencies Appropriations Act, 1998 (18 U.S.C. 3006A note), or any other provision of law (including related regulations), there shall not be a limit on the award of attorney’s fees and costs under subsection (b).
Sec. 9 Prohibition on use of funds for political targeting
Section 1341(a) of title 31, United States Code, is amended—
in paragraph (1)—
in subparagraph (C), by striking “or” at the end;
in subparagraph (D), by striking the period at the end and inserting “; or”; and
by adding at the end the following:
“(E) obligate or expend Federal funds for any covered Government action or covered enforcement claim against a covered person that is substantially motivated by protected speech or participation by the covered person (as such terms are defined in section 3 of the No Political Enemies Act).”
by adding at the end the following:
“(3)
“(A) Any person aggrieved of a violation of paragraph (1)(E) may bring a civil action in an appropriate district court of the United States or the United States District Court for the District of Columbia seeking injunctive or other equitable relief.
“(B) The Federal courts shall have jurisdiction of a civil action under subparagraph (A) without regard to section 1346(a), 2342, or 2349 of title 28, section 701(a) of title 5, or section 242 of the Immigration and Nationality Act (8 U.S.C. 1252).”
Sec. 10 Regular reporting to congress
Definitions— In this section:
Department— The term Department means the Department of Justice, including the Federal Bureau of Investigation and each office of a United States attorney.
Covered matter— The term covered matter means any criminal investigation, prosecution, or enforcement action—
for which approval, consultation, or sign-off by a component of the headquarters of the Department or by the leadership of the Department is required under statute, regulation, or written Department policy; or
designated by the Attorney General or Deputy Attorney General as of significant public interest or sensitivity.
Quarterly reports—
In general— Not later than 30 days after the end of each calendar quarter, the Attorney General shall submit to the Committee on the Judiciary of the Senate and the Committee on the Judiciary of the House of Representatives a report containing—
a summary of all covered matters initiated, approved, declined, or closed during the preceding quarter;
the basis for any declination, approval, or directive issued by the leadership of the Department in connection with a covered matter;
any significant changes in Department policy governing the approval or oversight of covered matters; and
aggregated data on prosecutorial declarations
Format and classification— Each report under paragraph (1) shall be submitted in unclassified form, but may include a classified annex as necessary to protect ongoing investigations or sensitive law enforcement information.
Immediate notification— The Attorney General shall notify the Committee on the Judiciary of the Senate and the Committee on the Judiciary of the House of Representatives not later than 3 business days after any court—
rejects or allows discovery into a prosecutorial declaration; or
otherwise issues an order materially affecting the confidentiality or validity of such declaration.
Sec. 11 Severability
If any provision of this Act or any amendment made by this Act, or the application of a provision of this Act or an amendment made by this Act to any person or circumstance, is held to be unconstitutional, the remainder of this Act, and the application of the provision or amendment to any other person or circumstance, shall not be affected thereby.