ACLU weighs in against DISCLOSE Act

The American Civil Liberties Union today sent to the U.S. Senate a letter urging them to vote against the DISCLOSE Act when it comes up for a vote next week (or at least is scheduled to). A few of the key points raised by the letter:

1. The DISCLOSE Act fails to preserve the anonymity of small donors, thereby especially chilling the expression rights of those who support controversial causes.

…Anonymity is important to many supporters of organizations that advocate for both popular and controversial causes. This is the case for even a longstanding and well-known organization such as the ACLU, as it surely is for groups of many other viewpoints, sizes, and histories. The pursuit of anonymity is not merely a matter of preference or convenience for individuals who support controversial movements. The harassment and attacks on members of the civil rights movement, for example, show that anonymity can be a matter personal safety.

Especially problematic is that the DISCLOSE Act would typically compel disclosure even when a donor had no intention that a gift be used for political purposes.4 It is both impractical and unfair to hold relatively small contributors responsible for every advertisement that an organization publishes…

2. The DISCLOSE Act would chill not only express advocacy on political candidates, but also issue advocacy.

The DISCLOSE Act would regulate not only independent expenditures regarding political candidates, but also those communications deemed to be the “functional equivalent” of such communications. This… ambiguity will lead individuals and organizations wishing to avoid disclosure obligations to steer clear of issue advocacy as well…Failure to create a clear distinction will chill not just express advocacy, but issue advocacy as well.

Imagine an organization that is uncertain whether it must disclose the names of its donors under the new law, because of the ambiguity of the proposed “functional equivalent” definition… It could refrain from the kind of issue advocacy that it fears might cross the border into “express advocacy” – in which case it will have acted as a self-censor. Alternatively, it could try to limit its disclosure obligations by setting up a [Campaign Related Activity Account]. In the latter case, it would not only be required to disclose donors who contributed to the CRAA, but also, if the organization deposited general treasury funds into the CRAA, general obligation donors who contributed over $6,000, even if they haven’t given to the political advocacy efforts of the organization… If the communication turned out to be “issue advocacy,” and not express advocacy or its functional equivalent, the organization would have violated the provisions of the Campaign-Related Activity Account and would have to disclose all general fund donors giving more than $600…

3. The DISCLOSE Act imposes impractical requirements on those who wish to communicate using broadcast messages.

The DISCLOSE Act mandates disclaimers on television and radio advertisements that are so burdensome they would either drown out the intended message or discourage groups from speaking out at all. The individual or organizational disclosure statement, the significant funder disclosure statement, and the top-five funders statement each take up six seconds, meaning more than half of many 30-second television messages would be filled with compelled disclosures…

The significant funder statement is especially troubling in that it might require endorsement by an individual or organization that has funded a group without intending or desiring to control the content of a specific advertisement. The significant funder for a given ad might be a supporter who has given money without designating its use for the ad in question – or even the general political activity in question. For many organizations, advertising is a small part of their overall operations, and the significant funder might even disagree with the content of an organization’s advertisements while supporting the organization as a whole.

At best, the disclaimers would reduce the opportunity for “speech” in many advertisements by more than 50 percent. At worst, they would drive from the airwaves many organizations that wish to share their views on important public issues. The Act’s “hardship” provisions, limiting the required statements when they would demand a “disproportionate amount of time,” is vague and offers little assurance that the core message of an issue advertisement will be preserved. Current law already provides for the disclosure of an advertisement’s sponsor. There is no need for further requirements that limit or discourage public discussion of important issues.

4. The DISCLOSE Act imposes unjust restrictions on contractors, TARP participants and corporations with minimal foreign participation.

…The restrictions are unfair because they are not tied to a demonstrated risk of corruption and they do not apply to many similarly situated recipients of government funding. The restrictions on contractors and participants in the Troubled Asset Relief Program aim to silence businesses with government connections while allowing speech by labor unions and non-profits with comparable monetary links to the government. To the extent that restrictions on free speech might be tolerated at all, it is essential that they refrain from discriminating based on the identity of the speaker…

The restrictions on “foreign” corporations also sweep too broadly. Under the S. 3628, an American corporation with merely 5 percent or 20 percent foreign ownership (depending on the identity of the foreign shareholder) is subject to speech restrictions. The DISCLOSE Act goes too far by silencing corporations with up to 95 percent American ownership. Further, this restriction discriminates in much the same manner as the rules for government contractors by allowing speech by labor unions and non-profits with foreign leadership or a large proportion of foreign members…

The full letter is simply outstanding, and echoes the arguments that we at the Center for Competitive Politics have been making for the last several months.

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