DISCLOSE: Here We Go Again

June 23rd, 2010 - by Quincy

Despite the Supreme Court’s recent ruling in Citizens United v. Federal Election Commission (see explanatory video here if needed), Congress seems poised to resume its underhanded and self-serving efforts to control political speech. Congress is now considering legislation, sponsored by Representative Chris Van Hollen of Maryland and Senator Charles Schumer of New York, that would further restrict political speech during election season. This latest legislative effort bears the auspicious title of “Democracy Is Strengthened by Casting Light On Spending in Elections Act,” which generates the acronym DISCLOSE for its short name. (H.R.5175, and S.3295 respectively).

Given the Supreme Court’s clear ruling in Citizens United which protected robust free speech rights, it may surprise you to learn that in many ways the DISCLOSE Act would restrict speech even more aggressively than the law which the Supreme Court recently struck down. For example, the old speech restrictions only applied to electioneering communications that were made within 60 days prior to a general election. The DISCLOSE Act would double that time period to 120 days. Features like this might give the impression, at first glance, that instead of accepting the Court’s scolding for violating the First Amendment, Congress, like a petulant child, is bent on contradiction and belligerence.

But the DISCLOSE Act isn’t just Congress’ reflexive gag to a bitter slice of humble pie. It is cunningly crafted legislation that would, if enacted, stifle challenging, political speech without falling into the same legal pitfalls as the McCain-Feingold Act. Since the Supreme Court rejected an outright ban on all corporations, the DISCLOSE Act pretends to take a more moderate approach. Instead of directly restricting the speech of all corporations and unions, the DISCLOSE Act would directly restrict the speech of only certain classes of corporations. These classes are government contractors if the value of the contract is at least $7 million; recipients of recent government bailout funds; and foreign-controlled domestic corporations. In all fairness, these restrictions are relatively reasonable—as government restrictions go. But the real teeth of the DISCLOSE Act are found—quite fittingly—in the new disclosure requirements. Consider the following.

The DISCLOSE Act expands the definition of “independent expenditure” to include, “an expenditure that, when taken as a whole, expressly advocates the election or defeat of a clearly identified candidate, or is the functional equivalent of express advocacy.” Sec. 201(a). This tack-on at the end about functional equivalence gives the Federal Election Commission broad discretion about what speech it can regulate, and it correspondingly creates uncertainty among potential speakers about what speech is safe from regulation.

The DISCLOSE Act imposes filing requirements on everyone who wishes to spend over a $10,000 on political speech to, “(1) file a report electronically within 24 hours; and (2) file a new report electronically each time the person makes or contracts to make independent expenditures in an aggregate amount equal to or greater than $10,000 (or $1,000, if less than 20 days before an election) with respect to the same election.” Sec. 201(b). These filing requirements apply irrespective of whether it is election season or not. $10,000 may seem like high threshold, but it doesn’t last long when you consider the cost of broadcasting on television and radio. The bottom line is that before you speak about politics in any significant way, you have to warn the federal government of your intentions.

The DISCLOSE Act “Requires corporations, labor organizations, tax-exempt charitable organizations, and political organizations other than political committees (covered organizations) to include specified additional information ….” Sec. 211(a)(5)(A). This information includes, among other things, the names of substantial donors. This disclosure requirement will discourage political speech, especially the speech of those who advocate political messages that don’t agree with their community’s acceptable mainstream. Think, for example, of what this would have done to the civil rights movement in the south. Many political and social issues debated in politics today similarly raise deep prejudice and anger, and publicly disclosing the names of those who support unpopular ideas causes more than minor discomfort.

The DISCLOSE Act requires any television or radio advertisement to include statements by substantial donors stating “‘I am XXXXXXX, and I approve this message.’, with the blank filled in with the name of the applicable individual.” Sec. 214(e). Organizational donors must similarly identify themselves. This, obviously, will waste expensive seconds that would otherwise have been available for the speakers to communicate their message.

This list of restrictions found in the DISCLOSE Act is by no means a comprehensive one, but I think it illustrates a subtle, underhanded strategy for restricting speech that seeks to undermine First Amendment rights while avoiding constitutional challenge. Instead of direct bans, this strategy seeks to increase the costs—both social and economic—for those who wish to exercise their First Amendment rights. It comes on the heels of loud public outcry about many of Congress’s policies, and it immediately precedes an election season in which most voters’ starting assumption will be that “incumbent” means “incompetent and corrupt.” Even if the DISCLOSE Act did nothing more than confuse and intimidate speakers about what was permissible and what was not—which it certainly will do if it is passed, that would be reason enough not to enact it. But this legislation would do far more damage than that.

5 Responses to “DISCLOSE: Here We Go Again”

  1. jasonthe says:

    Wonderfully convoluted attempt here, but there really isn’t much of a credible objection to the level of transparency the DISCLOSE legislation forces.

    You’re watching too much Fox. They’ve been beating this same drum (“oh, those poor corporations… won’t someone think of the corporations?!!!) You’ve got the talking points on this one down, but your reasoning is about as sound (i.e. not).

  2. Jamie says:

    I almost had the motivation to wade through the 16 page policy analysis from CATO on this, but you have SAVED me!!!!! Truly a public service. I will suggest, again, that since you do this on your own time as something of a hobby anyway, you should submit your writing to be published. I’m going to link to this on facebook.

  3. Jamie says:

    George Will just suggested that the senate judiciary committee ask Elena Kagan the following:

    “Regarding campaign finance “reforms”: If allowing the political class to write laws regulating the quantity, content and timing of speech about the political class is the solution, what is the problem?

    – If the problem is corruption, do we not already have abundant laws proscribing that?

    – If the problem is the “appearance” of corruption, how do you square the First Amendment with Congress restricting speech in order to regulate how things “appear” to unspecified people?

    – Incumbent legislators are constantly tinkering with the rules regulating campaigns that could cost them their jobs. Does this present an appearance of corruption?”

  4. Quincy says:

    Thanks for the encouragement Jamie.

    Jason,

    First, if you take time to read the DISCLOSE Act, you will discover that it applies to everyone who wishes to engage in political speech. Second, to be even mildly persuasive you must explain why corporations should be treated differently for purposes of free speech–this would include answering the questions from George Will that Jamie quoted. Stop and listen to yourself for a minute. Is it really a good idea to allow government to dictate limits about what or how much people can say about politics?

  5. Jamie says:

    A full article on the same topic with some other interesting insights:

    http://patriotpost.us/opinion/george-will/2010/07/11/in-disclose-act-a-free-speech-clamp/

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