DISCLOSE Act – the Citizens United “Fix” – To Come to a Vote in the House This Week

H.R. 5175, the DISCLOSE Act, which is an attempt by Democratic legislators to reverse the Supreme Court’s ruling in Citizens United v. FEC, will likely come to a vote in the House of Representatives on Friday.  It is crucial that this bill not be passed.  Not only is DISCLOSE a clear, unconstitutional restriction on First Amendment rights to Free Speech, but it also unnecessarily makes election law, already complex and confusing to ordinary voters, even more incomprehensible.

A piece in the Wall Street Journal co-authored by former Federal Election Commissioners Joan Aikens, Lee Ann Elliott, Thomas Josefiak, David Mason, Bradley Smith, Hans A. Von Spakovsky, Michael Toner and Darryl R. Wold – at least one of whom served on the FEC at all times from its inception in 1975 through August 2008 – wrote:

The Disclose Act…is a blatant attempt by its sponsors to do indirectly, through excessively onerous regulatory requirements, what the Supreme Court told Congress it cannot do directly—restrict political speech.

Perhaps the most striking thing about the Disclose Act is that, while the Supreme Court overturned limits on spending by both corporations and unions, Disclose seeks to reimpose them only on corporations. The FEC must constantly fight to overcome the perception that the law is merely a partisan tool of dominant political interests. Failure to maintain an evenhanded approach towards unions and corporations threatens public confidence in the integrity of the electoral system.

For example, while the Disclose Act prohibits any corporation with a federal contract of $50,000 or more from making independent expenditures or electioneering communications, no such prohibition applies to unions. This $50,000 trigger is so low it would exclude thousands of corporations from engaging in constitutionally protected political speech, the very core of the First Amendment. Yet public employee unions negotiate directly with the government for benefits many times the value of contracts that would trigger the corporate ban.

It seems unquestionable to many that the discrepancy in treatment of unions and corporations is politically motivated and “will give unions the upper hand in the coming midterm elections,” as The Hill explained in an article on Tuesday.  It quoted Bruce Josten, top lobbyist for the U.S. Chamber of Commerce as arguing: “This is changing the rules of the game in the middle of the game to clearly benefit one side.  It is a job-protection bill for incumbent lawmakers in Washington.” 

If the bill passes, it would go into effect a mere 30 days after passage, regardless of whether the FEC writes regulations to interpret the many vague provisions in the bill.  This could create regulatory chaos for the midterm elections and force independent speakers to stay on the sidelines.  Moreover, as the Center for Competitive Politics explained, “the bill contains a provision different than the one in McCain-Feingold, slowing the standard for challenging the constitutionality of the provisions.”  It goes on to note that provisions of the bill “would ensure that, if the legislation passes, it would not be overturned or remedied until well after the 2010 elections.”

In a letter to members of Congress, Americans for Tax Reform described the bill as “us[ing] the [Citizens United] ruling as an excuse to expand the scope of campaign finance regulations to strangle free speech” and “an unequivocal ban on free speech, masquerading as an exercise in accountability.”  It concluded:

The DISCLOSE Act, while cleverly named, aims to silence political speech by intimidation and onerous regulation.  Such efforts should be rejected swiftly.  Thus, on behalf of the millions of Americans we represent, we urge you to reject this assault on free speech and to vote against H.R. 5175.