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[Congressional Bills 119th Congress]
[From the U.S. Government Publishing Office]
[S. 3646 Introduced in Senate (IS)]
<DOC>
119th CONGRESS
2d Session
S. 3646
To stop the Government from attacking individuals and organizations for
their political speech or participation.
_______________________________________________________________________
IN THE SENATE OF THE UNITED STATES
January 14, 2026
Mr. Murphy (for himself, Mr. Schumer, Ms. Alsobrooks, Mr. Blumenthal,
Mr. Booker, Mr. Merkley, Mr. Padilla, Mr. Schiff, Ms. Smith, Mr. Van
Hollen, and Mr. Welch) introduced the following bill; which was read
twice and referred to the Committee on the Judiciary
_______________________________________________________________________
A BILL
To stop the Government from attacking individuals and organizations for
their political speech or participation.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``No Political Enemies Act''.
SEC. 2. FINDINGS.
Congress finds the following:
(1) Congress has not delegated to the President the ability
to designate an entity as a domestic terrorist organization.
(2) 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.
(3) 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.
(4) 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:
(1) 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).
(2) 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.
(3) Covered government action.--The term ``covered
Government action''--
(A) 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;
(B) includes an investigative, regulatory, or
enforcement action that is taken without legal
authority; and
(C) does not include an action taken against a
Federal officer or employee with respect to their
employment with the Federal Government.
(4) Covered person.--The term ``covered person'' means--
(A) a domestic entity; or
(B) an individual who is--
(i) a citizen or national of the United
States;
(ii) an alien lawfully admitted for
permanent residence to the United States; or
(iii) present in the United States or its
territories.
(5) 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).
(6) 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.
(7) Substantially motivated by protected speech or
participation.--
(A) 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.
(B) 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--
(i) section 2003 or 2004 of the Revised
Statutes (52 U.S.C. 10102, 10101);
(ii) the Voting Rights Act of 1965 (52
U.S.C. 10301 et seq.);
(iii) the Voting Accessibility for the
Elderly and Handicapped Act (52 U.S.C. 20101 et
seq.);
(iv) the Uniformed and Overseas Citizens
Absentee Voting Act (52 U.S.C. 20301 et seq.);
(v) the National Voter Registration Act of
1993 (52 U.S.C. 20501 et seq.);
(vi) title III of the Civil Rights Act of
1960 (52 U.S.C. 20701 et seq.);
(vii) the Help America Vote Act of 2002 (52
U.S.C. 20901 et seq.); and
(viii) 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.
(a) 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.
(b) 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--
(1) the court--
(A) shall order expedited discovery reasonably
related to the alleged motivations of the Government
for pursuing the covered enforcement claim; and
(B) 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
(2) the Government shall bear the burden of proving by
clear and convincing evidence that--
(A) legitimate grounds unrelated to protected
speech or participation by the covered person justify
the covered enforcement claim; and
(B) the covered enforcement claim was not
substantially motivated by the protected speech or
participation of the covered person.
(c) 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.
(a) 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.
(b) Basis for Relief.--
(1) 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.
(2) Establishing a basis for relief.--For purposes of
establishing a basis for relief--
(A) 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
(B) 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.
(c) 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).
(d) 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.
(a) 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--
(1) 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
(2) the rights of the covered person under the Constitution
of the United States were violated in connection with the
covered Government action.
(b) 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).
(c) Statutory Immunity.--A covered Federal official shall be immune
in a civil action under subsection (a) if--
(1) the covered Federal official acted in good faith; and
(2) any speech, expression, or association motivating the
covered Government action clearly was not protected under the
Constitution of the United States.
(d) Limitation on Indemnification.--The United States may not
indemnify a covered Federal official in connection with a civil action
under subsection (a), unless--
(1) the court determines that the requirements of immunity
under subsection (c) are satisfied; or
(2) indemnification is necessary for complete relief
because--
(A) 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
(B) the covered Federal official demonstrates an
inability to pay the full amount awarded.
(e) 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.
(a) Definition.--In this section, the term ``substantially
prevailed'', with respect to a party, means that the party has obtained
relief through--
(1) a judicial order or an enforceable written agreement or
consent decree;
(2) a voluntary or unilateral change in position by the
Federal Government, if the claim of the party opponent is not
insubstantial; or
(3) preliminary or permanent injunctive relief from the
covered Government action that is not ultimately overturned.
(b) 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--
(1) with respect to a covered Government action or covered
enforcement claim under criminal law--
(A) the prosecution was dismissed, the defendant
was found not guilty, or pre-enforcement activities
were enjoined by a court; and
(B) the party demonstrates that the covered
Government action or covered enforcement claim was
substantially motivated by protected speech or
participation by the party; or
(2) with respect to a covered Government action or covered
enforcement claim under civil law, the party--
(A) has substantially prevailed; and
(B) demonstrates that the covered Government action
or covered enforcement claim was substantially
motivated by protected speech or participation by the
party.
(c) 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--
(1) in paragraph (1)--
(A) in subparagraph (C), by striking ``or'' at the
end;
(B) in subparagraph (D), by striking the period at
the end and inserting ``; or''; and
(C) 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).'';
and
(2) 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.
(a) Definitions.--In this section:
(1) Department.--The term ``Department'' means the
Department of Justice, including the Federal Bureau of
Investigation and each office of a United States attorney.
(2) Covered matter.--The term ``covered matter'' means any
criminal investigation, prosecution, or enforcement action--
(A) 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
(B) designated by the Attorney General or Deputy
Attorney General as of significant public interest or
sensitivity.
(b) Quarterly Reports.--
(1) 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) a summary of all covered matters initiated,
approved, declined, or closed during the preceding
quarter;
(B) the basis for any declination, approval, or
directive issued by the leadership of the Department in
connection with a covered matter;
(C) any significant changes in Department policy
governing the approval or oversight of covered matters;
and
(D) aggregated data on prosecutorial declarations
(2) 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.
(c) 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--
(1) rejects or allows discovery into a prosecutorial
declaration; or
(2) 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.
<all>
Introduced in Senate
Read twice and referred to the Committee on the Judiciary.
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