Disclosure Federal

CCP releases policy briefing on ‘DISCLOSE Act’

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.

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Center for Competitive Politics analyzes disclosure provisions of ‘DISCLOSE Act’

The Center for Competitive Politics (CCP) has prepared a legislative analysis of “The DISCLOSE Act” in advance of the House Administration Committee’s 5 p.m. hearing today on the bill. The memo will be filed as written testimony for the committee record.

“The proposals in the “DISCLOSE Act” (Democratic Incumbents Seeking to Contain Losses by Outlawing Speech in Elections) amount to nothing more than political posturing,” said CCP Chairman Bradley A. Smith. “This bill would create another bureaucratic layer of political speech regulation, which would punish small business owners and grassroots groups who lack the resources to comply with such onerous provisions.”

The Senate sponsor of the legislation (H.R. 5175 and S. 3295), Sen. Chuck Schumer (D-N.Y.), openly admitted he thought the bill would discourage independent ads by companies. Common Cause and Public Campaign circulated a memo last year calling for a new disclosure regime after Citizens United to “expose corporations and candidates to potential embarrassment.”

White House Counsel Bob Bauer wrote about the costs associated with onerous disclosure regimes in while practicing at the law firm Perkins Coie. Bauer explained how disclosure can expose grassroots groups to frivolous legal complaints and other harassment by political opponents:

“So for the committee, donor or vendor whose mandated disclosures are scrutinized by the state and allied nongovernmental ‘watchdogs,’ the disclosure regime is not only a challenge to privacy but also the gateway to entanglement with the legal process,” Bauer wrote in the Election Law Journal (6 Election L.J. 38). “The state is not facilitating an exchange of information with their fellow citizens primarily for their enlightenment. Aided by private organizations well funded in their commitment to campaign finance reform, it is committed to the production and availability of data for the purposes of developing the law and extending its reach.”

The disclosure provisions in the “DISCLOSE Act” (§ 211-213) are unnecessary, as current statutes and FEC regulations prevent the type of opaque spending of money with which the bill’s sponsors are concerned. Knee-jerk legislation imposing a new disclosure regime for groups that wish to speak-months before an election-presents a serious threat to the constitutional protection of political speech. The legislation does not provide time for the FEC to update its regulations, ensuring that groups wishing to speak face confusion and uncertainty about the new laws-perhaps the intent of incumbents wary of criticism.

 “The Democrats who crafted this regulatory maze behind closed doors are demanding that lawmakers rush through this bill as campaign season is already in full swing,” said Vice President Steve Hoersting. “Their allies in the self-styled reform community have implored Republicans to simply support ‘disclosure,’ while admitting that the bill’s intent is to silence disfavored interests.”

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DISCLOSE Act: Democratic leaders push self-serving campaign finance law

Lawmakers are introducing a bill today designed to subvert the Supreme Court’s ruling in Citizens United v. Federal Election Commission and intimidate dissenting groups into silence as midterm elections approach.

“The First Amendment says ‘Congress shall make no law… abridging the freedom of speech,’ not ‘Congress should protect some speech, but feel free to hyper-regulate the political speech of businesses and nonprofits,'” said Center for Competitive Politics Chairman Bradley A. Smith, a former FEC Chairman.

Twenty-one Republicans voted for McCain-Feingold and still serve in Congress. The fact that Democrats were only able to persuade two Republicans to join their gimmicky bill indicates that the DISCLOSE Act would serve the interests of incumbents, especially the Democratic majority—not the public interest,” Smith said.

Rep. Chris Van Hollen, the chairman of the Democratic Congressional Campaign Committee, and Sen. Chuck Schumer, the immediate past chairman of the Democratic Senatorial Campaign Committee, spent three months crafting the bill behind closed doors after rejecting significant Republican input.

The legislation would ban many companies from airing political ads, give candidates a windfall subsidy in ad time to respond to independent ads, regulate long-protected issue advocacy with more restrictive coordination rules and force nonprofits and trade groups to disclose their donors-even if donors don’t intend their funds to be used for influencing elections.

Citizens United vindicated robust political speech no matter the speaker,” said CCP Vice President Stephen M. Hoersting. “The First Amendment does not need a fix from self-serving politicians seeking a monopoly on political speech.”

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Van Hollen intervenes in support of failed campaign finance restriction

Rep. Chris Van Hollen of Maryland has filed papers to join the legal battle over the ‘soft money’ ban in the Bipartisan Campaign Reform Act of 2002 (BCRA), raising the stakes in an effort by congressional supporters to defend their failed law restricting political speech.

"The federal government doesn’t have the power to regulate the financing of state and local elections," said Center for Competitive Politics Chairman Bradley A. Smith, a former FEC Chairman. "It shouldn’t be able to tell the national political parties they can raise only limited funds for state and local purposes. The court will have the opportunity to examine the flawed decision that national party spending on non-federal campaigns can be restricted to remedy a vague and unjustified corruption concern connected to federal politicians."

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First Amendment group files amicus brief in disclosure case

The Center for Competitive Politics (CCP) filed an amicus brief today in Citizens United v. Federal Election Commission, a campaign finance case that will be argued before the Supreme Court later this spring. The Supreme Court will decide whether an independent group engaged in non-campaign communications must disclose their donors.

"The government has no anti-corruption or informational interest in the disclosure of non-campaign speech.  Issue discussion among citizens is protected through anonymity," said Stephen M. Hoersting, the Vice Chairman of CCP. "While there is a risk candidates may change positions once elected to reward large contributors, issues don’t change once enacted. Citizens learn nothing about the merits of a filibuster or a tax proposal by knowing if a neighbor donated money to run ads for or against it – and corrupt officials on the opposing side would learn too much."

(more)

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Right to Life seeks Right to Speak – national media release

The Ohio Right to Life Society filed a lawsuit today in federal court challenging an Ohio law mandating that the group report all contributors who contribute $200 or more to the group so that it can run advertisements mentioning the name of a political candidate within 30 days of an election.

"The government cannot simply compile a database of citizens’ political activities without providing a compelling reason," said Stephen Hoersting, vice president of the Center for Competitive Politics and an attorney representing the group. "Compelled disclosure is supposed to put sunlight on the operations of government, not glare on the operations of citizens." 

More after the jump.

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Comments of CCP Vice President Steve Hoersting on WRTL Rulemaking

Written comments of CCP Vice President Steve Hoersting on a October 1, 2007 message to the Federal Election Commission on the topic of WRTL rulemaking.

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Congressional Testimony: Grassroots Lobbying Disclosure

CCP Chairman Brad Smith’s testimony on grassroots lobbying disclosure, delivered March 1, 2007 before the House Judiciary Subcommittee on the Constitution, Civil Rights, and Civil Liberties.

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Testimony of CCP Chairman Bradley A. Smith to the Committee on the Judiciary

Written testimony of CCP Chairman Bradley A. Smith at a March 1, 2007 hearing of the Committee on the Judiciary on the topic of S.1, the Senate Approach to Lobbying Reform.

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Comments on Notice of Proposed Rulemaking on Coordinated Communications

CCP comments on the Commission’s Notice of Proposed Rulemaking, Coordinated Communications. Executive Director, Steve Hoersting recommends retaining a well defined content standard, which lets unwary speakers know in advance which communications can trigger protracted investigations.

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