The DISCLOSE Act: Free Speech for Some, Hefty Price for Others
The House of Representatives is currently embroiled in a battle overH.R. 5175, the Democracy is Strengthened by Casting Light on Spending in Elections (DISCLOSE) Act. The legislation has caused a firestorm among lawmakers and politically active organizations as it seeks to use the Citizens United v. Federal Election Commission (FEC) ruling as an excuse to expand the scope of campaign finance regulations. Despite its clever name, it is clear that the intent of the DISCLOSE Act is not to promote transparency, but rather to silence political speech by intimidation and onerous regulations.
Current law is based on the disclosure of money, not donors. Contributions above a certain amount given to fund an independent expenditure or electioneering communication must be disclosed. The DISCLOSE Act, however, would for the first time force corporations and associations engaged in election-related activities to reveal the names of individual donors, regardless of whether they are direct funders of a specific ad or political communication. This all-inclusive treatment of organizational funding is intentionally meant to intimidate free speech and discourage political involvement.
As the Supreme Court reiterated in Citizens United, citing a prior case, political speech is “indispensible to decisionmaking in a democracy, and this is not less true because the speech comes from a corporation rather than an individual,” and that the value of such speech “does not depend upon the identity of its source, whether corporation, association, union or individual.”
The Citizens United decision clearly states that “the Government may commit a constitutional wrong when by law it identifies certain preferred speakers. By taking the right to speak from some and giving it to others, the Government deprives the disadvantaged person or class of the right to use speech to strive to establish worth, standing, and respect for the speaker’s voice. The Government may not by these means deprive the public of the right and privilege to determine for itself what speech and speakers are worthy of consideration.”
The DISCLOSE Act, which aims to protect speech for certain favored speakers,is particularly abhorrent to the First Amendment rightswhich are so plainly delineated in the Citizens United decision. The legislation particularly favors unions; aggregate contributions of $600 or more would be disclosed, however most union members’ dues total just below $600 in a calendar year. This is not a coincidence.
The DISCLOSE Act recently gained momentum due to a special deal that the Democratic Leadership struck with the National Rifle Association (NRA). A new provision in the bill, which will exempt organizations that are at least 10 years old, have more than 500,000 members, and receive less than 15 percent of their funding from corporate donors, will conveniently carve out the NRA and possibly other groups. Such a political maneuver is not only shameful, it is unconstitutional, as the power to speak freely will be reserved for a handful of large and longstanding organizations.
Despite her status as a member of the NRA Board of Directors, attorneyCleta Mitchell publicly scolded the NRA in a June 17, 2010 Washington Post op-edfor choosing“a political deal borne of self-interest in exchange for ‘neutrality’ from the legislation’s requirements. In doing so, the NRA has, sadly, affirmed the notion held by congressional Democrats (and some Republicans), liberal activists, the media establishment and, at least for now, a minority on the Supreme Court that First Amendment protections are subject to negotiation.The Second Amendment surely cannot be far behind.”
The Democratic Leadership has slated a vote on the DISCLOSE Act before the Fourth of July recess, but it is increasinglypossible that the vote will be delayed due to lack of consensus. Groups ranging from the Sierra Club to the U.S. Chamber of Commerce have publicly opposed the legislation. The Council for Citizens Against Government Waste was among the first to condemn the bill, urging all members of the House to vote against this blatantly unfair, unprecedented, and unconstitutional legislation.
At every turn, this Congress has attempted to trample the basic rights and freedoms cherished by all Americans. Whether it be a takeover of the Internet, cap-and-tax, or the seizure of one-sixth of the economy through ObamaCare, big-government advocatesare determined to squash the notion of choice and free market capitalism despite massive public opposition. Now, as another election cycle approaches with congressional approval ratings at an all-time low, the voice of tea partiers and grassroots activists is threatened. Passing the DISCLOSE Act will inevitably eradicate politically “unfavorable” speech and jeopardize the First Amendment rights of all Americans.
– Erica Gordon
