Former FEC Chairman Bradley A. Smith: “Disclosed Partisanship”

While the DISCLOSE Act was pulled from consideration in the U.S. House of Representatives last week, a Democratic source told Roll Call newspaper that, “It’s going to be one of the first things we take up when we get back.”  Thus, the DISCLOSE Act could be voted on as soon as June 9th.   

In a 1996 memorandum to deputy chief of staff Harold Ickes, then-White House aide and current Supreme Court nominee Elena Kagan offered advice on “whether President Clinton should support proposed amendments to the McCain-Feingold campaign-finance bill.”  Bradley A. Smith, Chairman of the Center for Competitive Politics, and former Chairman of the Federal Election Commission, explains in a National Review article this week:

The first amendment was to weaken the bill’s ban on “bundling” of contributions. The memorandum’s analysis of the proposal begins: “We have no data on which party benefits more from bundling practices.” The second amendment was to limit out-of-state contributions to candidates. The memo’s analysis begins: “The [limit] may hurt Democratic senatorial candidates.” In other words, the memo evaluated the amendments not on the basis of their benefits or harms to the public, but rather their potential to confer a partisan advantage.

Smith’s point is that “[a] key goal of every ‘reform’ bill has been partisan gain” and the DISCLOSE Act is no exception. 

After the Supreme Court handed down the decision in Citizens United, “NPR’s Nina Totenberg summed up the conventional Democratic wisdom on the ruling: ‘It will undoubtedly help Republican candidates since corporations have generally supported Republican candidates more.’”

It was not long thereafter that President Obama condemned the decision, claiming in his State of the Union address that the Supreme Court had “reversed a century of law to open the floodgates – including foreign corporations – to spend without limit in our elections” and called for it to be overturned “because it was a victory for ‘Big Oil, Wall Street banks, [and] health-insurance companies,’ his usual rogue’s gallery.”

Sen. Chuck Schumer (D., N.Y.) immediately began discussing legislative proposals that would “make [corporations] think twice” before getting involved in campaigns. “The deterrent effect should not be underestimated,” he added. The Washington Post noted that the Democratic proposals “are aimed at preventing corporations from hiding behind trade groups or other organizations in order to fund attack ads on political candidates.”

After denying Republican requests to offer input during drafting of the legislation, Schumer, the former head of the Democratic Senatorial Campaign Committee, and Rep. Chris Van Hollen, current head of the Democratic Congressional Campaign Committee, introduced the DISCLOSE Act – “Democracy Is Strengthened by Casting Light on Spending in Elections.”  Or, as critics prefer, “Democratic Incumbents Seeking to Contain Losses by Outlawing Speech in Elections.”

Smith argues that one need not look far to recognize the blatant partisanship of the bill, notably, DISCLOSE is the first major campaign-finance bill that has not treated corporations and unions equally -- a fact that would bar not only large contractors, but also thousands of small businesses from exercising the rights recognized in Citizens United, while having no effect on unions.  Further, Smith notes “the disclosure provisions in the bill range from the duplicative to the patently absurd” and make it clear “that DISCLOSE seeks less to enlighten the public than to bury would-be spenders in regulation and provide politicians with a means for intimidating their donors.”

There is no doubt what the current Democratic Congress’ intention is with the DISCLOSE Act and the implications should this legislation pass are also quite apparent.  As Smith concluded:

That Congress would respond to a Supreme Court decision affirming corporations’ freedom of speech by restricting that freedom to an even greater extent than it did before the decision is remarkable. The attempt is unlikely to withstand judicial challenge, but, as Senator Schumer made clear early on, he believes the courts won’t have time to rule on the constitutionality of the act before the 2010 election is over.

Whether DISCLOSE passes depends on whether there are any Republican senators gullible enough not to filibuster a law specifically designed to give Democrats an electoral advantage. So far, even John McCain, a supporter of campaign-finance reform, has refused to sign on.

But this is the way of both “campaign-finance reform” and the Obama administration: use the law to silence your opponents. The DISCLOSE Act is a testament to the wisdom of the Supreme Court’s decision in Citizens United. The First Amendment sought to place political speech beyond the government’s control, and we can be glad that it did. Does future Justice Kagan agree?