Eight former commissioners of the Federal Election Commission submitted comments to the Committee on House Administration Wednesday, sharply criticizing the “DISCLOSE Act” as unnecessary, burdensome, and an enforcement nightmare. The committee is scheduled to mark-up the bill Thursday.
“The FEC now has regulations for 33 types of contributions and speech and 71 different types of speakers,” the commissioners wrote in the Wall Street Journal Wednesday. “Regardless of the abstract merit of the various arguments for and against limits on political contributions and spending, this very complexity raises serious concerns about whether the law can be enforced consistent with the First Amendment.”
Rep. Chris Van Hollen and Sen. Chuck Schumer introduced the “DISCLOSE Act” last month. The duo has dubbed the bill the “Democracy Is Strengthened by Casting Light On Spending in Elections” Act.
“Congressman Van Hollen and Senator Schumer have created a case study in deceptive advertising,” said Thomas J. Josefiak. “The bill is touted as ‘DISCLOSE,’ when, in fact, its purpose is to silence free speech guaranteed by the First Amendment.”
The former FEC commissioners have nearly 75 years of experience in interpreting the Federal Election Campaign Act, implementing campaign finance regulations, devising enforcement policy and investigating violations. They seek to provide Members of Congress a deeper understanding of the complex and difficult issues involved with the practical application of proposed changes to federal campaign finance laws.
“The DISCLOSE Act should really be renamed the New Sedition Act—it is clearly intended to intimidate and deter organizations, including nonprofits, from engaging in any political criticism of incumbents like its main sponsors, Chuck Schumer and Chris Van Hollen,” said Hans A. von Spakovsky.
The eight former FEC commissioners describe how the bill would introduce asymmetrical rules for unions and companies for the first time since the early twentieth century. Unions, for example, would not be subject to the bill’s ban on political spending for government contractors or companies with a small percentage of foreign ownership.
“The ‘DISCLOSE Act’ is a blatant attempt by its sponsors to do indirectly—by overly onerous regulatory requirements—what the Supreme Court has told Congress it cannot do directly-restrict speech by corporations, nonprofits or labor unions,” said Darryl R. Wold.
“This bill has been promoted as ‘mere disclosure,’ but through the expanded definition of electioneering communications combined with the ban on electioneering communications by even the smallest of contractors, it actually prohibits a tremendous amount of political speech that was legal before Citizens United,” said Bradley A. Smith. “Congress can’t respond to a decision striking down speech prohibitions by outlawing still more speech, yet that is what this bill would do.”
The bill’s sponsors have tried to convince the press and the public that their proposed law would simply update disclosure regulations after the Supreme Court ruled in Citizens United v. Federal Election Commission that the government could no longer ban corporations and unions from funding books, TV ads and movies advocating the election or defeat of candidates. The commissioners’ analysis, though, explains how the bill adds a complicated scheme of arduous and vague rules-with no hope for clarification through the rulemaking process-designed to confuse and intimidate grassroots groups while midterm campaigns are underway.
“The ‘DISCLOSE Act’ contains a bevy of burdensome, unnecessary and constitutionally suspect provisions,” said Michael E. Toner. “If the First Amendment’s clarion call for Congress to ‘make no law… abridging the freedom of speech’ is to have any force, this legislation must be summarily rejected.”
“In America, good-faith errors by those attempting to comply with our complicated maze of campaign finance regulations should not result in jail time or eye-popping fines,” said Lee Ann Elliott. “These regulatory burdens fall hardest not on large-scale players in the political world but on grass-roots movements, low-budget campaigns, and unwitting volunteers. Congress would worsen this situation by passing ‘DISCLOSE’ without giving the FEC time to implement regulations for it.”
The eight signatories of this letter to the Committee on House Administration and other Members of Congress also joined together to file an amicus brief in advance of the reargument of Citizens United last year. The brief was cited twice by the Court’s majority opinion. The commissioners, with FEC years and current affiliation indicated (for identification only), are Joan D. Aikens (1975-1998; retired); Lee Ann Elliott (1982-2000; Senior Scholar, Goldwater Institute); Thomas J. Josefiak (1985-1991; Partner, HoltzmanVogel PLLC); David M. Mason (1998-2008; Visiting Senior Fellow, Heritage Foundation); Bradley A. Smith (2000-2005; Chairman, Center for Competitive Politics); Michael E. Toner (2002-2007; Partner, Bryan Cave LLP); Hans A. von Spakovsky (2006-2007; Senior Legal Fellow, Heritage Foundation); and Darryl R. Wold (1998-2002; Of Counsel, Reed & Davidson LLP). All chaired the FEC during their tenure except for von Spakovsky.
The Center for Competitive Politics is a nonprofit group dedicated to promoting and protecting First Amendment political rights.