The Center for Competitive Politics (CCP) has released a comprehensive, section-by-section analysis of the “DISCLOSE Act” as the House Rules Committee prepares to meet Thursday* to consider further amendments to the campaign finance bill before it reaches the full House.
The 19-page policy briefing for Members of Congress, staff, engaged policy groups, campaign finance lawyers and other interested parties details the numerous policy and constitutional flaws with the bill as its rushed to the floor by Democrats attempting to silence unfriendly voices as midterm elections approach.
“Sponsors of this bill have sought to sell this bill as ‘just disclosure,’” said Center for Competitive Politics Chairman Bradley A. Smith, a former FEC Chairman. “Not even its gimmicky title, though, can distract from the fact that this bill imposes criminal penalties for constitutionally-protected political speech, departs from the parallel treatment of unions and companies for the first time in more than 60 years and would confound and chill grassroots groups in the midst of an election cycle.”
The ‘DISCLOSE Act’ would (1) single out business groups for outright bans on political speech: government contractors would be prohibited from engaging in political speech as well as companies in the United States (even those with 80 percent of American shareholders) that attract minimal foreign investment—no similar restrictions were included for labor unions with foreign connections, unions receiving government money or public employee unions negotiating for salaries and benefits; (2) create a far more onerous and vague disclosure regime than the Supreme Court cited in Citizens United, deterring grassroots groups from speaking out in midterm campaigns; and (3) explicitly sow chaos and confusion among those attempting to comply with campaign finance law by mandating that the law go into effect without clarification by the FEC of numerous vague and undefined provisions as well as slowing down the judicial review process.
CCP also released a two-page overview of the major provisions of the legislation: H.R. 5175 in the House and S. 3295 in the Senate. The House Rules Committee is scheduled to meet at 3 p.m. Thursday to consider 37 amendments to the legislation before crafting a procedure to bring the bill to the floor for a vote. The text of the bill as reported by the House Administration Committee is available here. The Rules Committee has also posted the Administration Committee’s report and a summary of the submitted amendments.
The effect of these proposed burdens on political speech as well as uncertainty by potential speakers appears to be by design. Sen. Chuck Schumer (D-N.Y.), the lead author of the Senate version of the DISCLOSE Act, summed up the intent of the bill at its introduction, saying that “the deterrent effect should not be underestimated.” At the House mark-up for DISCLOSE, a key sponsor, Rep. Michael Capuano (D-Mass.), said, “I hope it chills out all-not one side, all sides! I have no problem whatsoever keeping everybody out. If I could keep all outside entities out, I would.”
As written, this bill is an unconstitutional effort by Congress to subvert the Supreme Court’s ruling. DISCLOSE would directly contradict key elements of Citizens United and even prohibit a great deal of political speech allowed before the landmark case was decided in January.
“Congress should reject this effort to directly, indirectly, and through uncertainty prohibit, limit, and chill the political speech of Americans who chose to speak in association with their fellow citizens, whether through an incorporated business, a labor union, a trade or professional association or a nonprofit advocacy group,” said CCP President Sean Parnell.
The Center for Competitive Politics is a nonpartisan, nonprofit group dedicated to protecting First Amendment political rights. CCP seeks to deregulate the political marketplace of ideas through research, litigation and advocacy.
* UPDATE: The House Rules Committee indefinitely postponed their consideration of the DISCLOSE Act until after the Memorial Day recess. A Democratic aide told Roll Call the measure would be taken up the week of June 7.