H.R. 7060 — No Political Enemies Act

This section sets forth congressional findings that (1) Congress has not delegated to the President authority to designate an entity as a domestic terrorist organization; (2) the President lacks inherent Article II authority to do so; (3) the First Amendment guarantees freedoms of speech, press, peaceable assembly, and petition; and (4) no federal employee, including the President or Vice President, may violate constitutional rights.

This section establishes definitions for terms used in the Act, including (1) covered enforcement claim, meaning a claim by the federal government alleging a violation of federal civil or criminal law (including regulations); (2) covered Federal official, meaning an executive branch officer or employee, including the President, Vice President, and independent agency personnel; (3) covered Government action, meaning an exercise of investigative, regulatory, or enforcement authority under federal law against a specific covered person (including unauthorized actions but excluding those against federal employees regarding their employment); (4) covered person, meaning a domestic entity or certain U.S. citizens, nationals, permanent residents, or persons present in the United States or its territories; (5) domestic entity, meaning an entity organized under U.S., state, or territorial law; (6) protected speech or participation, meaning all constitutionally protected speech, including criticism, dissent, expression, or association; and (7) substantially motivated by protected speech or participation, meaning such speech is a motivating factor (not required to be sole or primary), except that actions under specified election laws—including 52 U.S.C. 10102 (prohibiting military interference in elections), the Voting Rights Act of 1965, and others—are not substantially motivated solely due to regulating political speech or participation.

This section establishes a general prohibition on covered Federal officials initiating or directing a covered enforcement claim or covered Government action against a covered person that is substantially motivated by protected speech or participation or otherwise intended to suppress, burden, or punish protected speech or participation.

This section establishes an affirmative defense to any covered enforcement claim if the claim against the covered person was substantially motivated by the person's protected speech or participation. If the covered person presents substantial evidence of such motivation after the government initiates the claim—including in underlying investigations or pre-enforcement activities—the court must (1) order expedited discovery on the government's motivations (with possible in camera and ex parte review of privileged materials if the Attorney General attests under oath to their privileged status), and (2) require the government to prove by clear and convincing evidence that legitimate grounds unrelated to protected speech or participation justify the claim and that it was not substantially motivated thereby; failure to meet this burden requires the court to dismiss the claim or award other appropriate relief.

This section establishes a civil cause of action permitting a covered person to seek injunctive or other equitable relief in an appropriate U.S. district court (or the U.S. District Court for the District of Columbia) against a covered federal official or executive branch agency for a covered government action substantially motivated by the covered person's protected speech or participation, where such action causes or is likely to cause imminent or actual ongoing harm. A First Amendment violation establishes sufficient harm for relief, and a likelihood of success in showing substantial motivation by protected speech or participation establishes irreparable harm for emergency, temporary, or preliminary injunctive relief. Federal courts have jurisdiction over such actions without regard to 28 U.S.C. §§1346(a), 2342, or 2349; 5 U.S.C. §701(a) (i.e., Administrative Procedure Act judicial review bar); or 8 U.S.C. §1252 (i.e., Immigration and Nationality Act provision limiting judicial review of final removal orders, expedited removal under INA §235(b)(1), discretionary relief denials, and related decisions). Additionally, courts may enjoin tax assessments or collections without regard to 26 U.S.C. §7421 (Anti-Injunction Act) if a covered government action to deny, investigate, or revoke the covered person's tax-exempt status is substantially motivated by protected speech or participation.

This section authorizes a covered person to bring a civil action for damages against a covered federal official in an appropriate U.S. district court or the U.S. District Court for the District of Columbia if the official knowingly initiated or directed a covered government action substantially motivated by the person's protected speech or participation and that action violated the person's constitutional rights. The section abrogates such an official's immunity to the maximum extent permitted by the Constitution, except where the official (1) acted in good faith and (2) any motivating speech, expression, or association was clearly unprotected under the Constitution. It further prohibits the United States from indemnifying the official against liability unless immunity applies or indemnification is necessary for complete relief because the plaintiff seeks payment from the United States and the official demonstrates inability to pay the full amount awarded. The section does not affect other judicially or statutorily created claims, remedies, rights, or procedures.

This section defines "substantially prevailed" with respect to a party as obtaining relief through a judicial order, enforceable agreement, voluntary government change in position, or injunctive relief not overturned. It authorizes a federal court, in proceedings relating to a covered government action or enforcement claim (including under sections 5, 6, or 7 of the Act), to order the United States to pay reasonable attorneys' fees and costs to a prevailing party opponent who demonstrates the action was substantially motivated by the party's protected speech or participation, as follows: (1) for criminal matters, if the prosecution is dismissed, the defendant is found not guilty, or pre-enforcement activities are enjoined; or (2) for civil matters, if the party substantially prevails. It exempts such awards from all statutory limits on attorney fees and costs, including under the Criminal Justice Act (18 U.S.C. § 3006A, which caps compensation for court-appointed counsel representing indigent persons in federal criminal cases), the Equal Access to Justice Act (28 U.S.C. § 2412), and other laws.

This section amends the Antideficiency Act (31 U.S.C. 1341(a)) to (1) prohibit the obligation or expenditure of federal funds for any covered government action or covered enforcement claim (as defined in section 3 of the No Political Enemies Act) against a covered person that is substantially motivated by protected speech or participation by that person; and (2) authorize any aggrieved person to bring a civil action for injunctive or other equitable relief in an appropriate U.S. district court or the U.S. District Court for the District of Columbia, with jurisdiction notwithstanding 28 U.S.C. 1346(a), 2342, or 2349; 5 U.S.C. 701(a); or 8 U.S.C. 1252 (i.e., limits on judicial review of certain immigration orders). (As background, the Antideficiency Act generally bars federal officers from obligating or expending funds exceeding available appropriations or from accepting voluntary services.)

This section establishes quarterly reporting requirements for the Attorney General to the Senate and House Judiciary Committees on covered matters within the Department of Justice (i.e., criminal investigations, prosecutions, or enforcement actions requiring headquarters approval under statute, regulation, or policy, or designated by the Attorney General or Deputy Attorney General as of significant public interest or sensitivity). The reports, due not later than 30 days after the end of each calendar quarter, must include (1) summaries of covered matters initiated, approved, declined, or closed during the quarter; (2) the basis for any declination, approval, or directive by Department leadership; (3) any significant changes in Department policy on approval or oversight of covered matters; and (4) aggregated data on prosecutorial declarations. Reports must be unclassified but may include a classified annex to protect ongoing investigations or sensitive information. This section further requires the Attorney General to notify the committees not later than three business days after any court rejects or allows discovery into a prosecutorial declaration or issues an order materially affecting its confidentiality or validity.

This section establishes a severability clause, providing that if any provision of the Act or its amendments, or its application to any person or circumstance, is held unconstitutional, the remainder of the Act and its application to other persons or circumstances remains unaffected.