Stand By Your Ad

MoveOn.org, a liberal advocacy group, is running a round of attack ads against Republican candidates Kelly Ayotte in New Hampshire and Rand Paul in Kentucky.

The ads link the candidates to the U.S. Chamber of Commerce as part of a campaign to “expose the shadowy corporate groups that are trying to influence the elections,” the Wall Street Journal reported yesterday. For the record, here’s the Chamber’s response to the baseless allegations. The Huffington Post noted that the MoveOn.org campaign is part of a coalition with the Media Matters Action Network and ThinkProgress.org to “push back against, and even dissuade, conservative groups and funders from launching major election-themed ad campaigns.”

An interesting aspect about the ads not reported by the press, though, is the difference between the disclaimers in the MoveOn.org ads and the disclaimers MoveOn.org and self-styled reform organizations would force upon political groups in the DISCLOSE Act, which Senate Democrats plan to bring up for another vote as early as next week.

No fireworks exploded at this afternoon’s House Rules Committee hearing on the DISCLOSE Act (H.R. 5175). First Amendment political rights, though, remain at serious risk of going up in smoke as the majority moves forward with an ill-advised bill to ban a significant amount of political speech that was legal even before Citizens United v. Federal Election Commission.

After two false starts (one before Memorial Day and the second last week), the Committee adopted a rule that provides for an hour of debate on the bill before a vote, likely Thursday morning, according to Capitol Hill sources.

Rules Committee Ranking Member David Dreier asked for four hours of debate, and, especially considering the 45-page Manager’s Amendment adopted in the Rules Committee with no advance notice, his request was eminently reasonable. All GOP motions, however, were rejected. Dreier also moved to make in order an amendment by Rep. Donna Edwards (D-Md.) to eliminate the carve out exempting the National Rifle Association from a disclosure provision of the bill. Democrats also thwarted that effort, endorsing a two-tiered system of First Amendment political rights: one for large, entrenched, Beltway lobbying groups and another for grassroots, local nonprofits.

It’s the first day of summer. An ideal time to be reading documents from the William J. Clinton Presidential Library. Here’s an excerpt from the draft Department of Justice letter to Senator Trent Lott, assessing the constitutional issues presented by the reform bill of the day, S. 1219 (the Senate Campaign Finance Reform Act of 1996). Section 302 of that bill would have required that independent expenditures contain the permanent street address of the funder, and that candidate advertisements contain an audio self-identification bit—basically a Stand By Your Ad requirement.

This is what the Clinton DOJ said in their draft response, found at p. 4 of this PDF:

By requiring those making independent expenditures to publicize their permanent street address and forcing candidates literally to speak or to make an appearance, each of these requirements places a burden on speech at the core of the First Amendment’s protection. If these requirements place a substantial burden on protected speech and do not materially advance a governmental interest, the provision would fail to pass constitutional scrutiny.

I guess this should come as no surprise. After all, it was President Clinton who appointed Brad Smith to the Federal Election Commission…

UPDATE: The Clinton administration also considered the law’s rescue fund provision unconstitutional. The provision would have raised the contribution limit if a publicly funded candidate was outspent by his opponent. On page 7 of the PDF, the DOJ wrote that the bill “would effectuate a speaker-based distinction that is based on the communicative impact of speech and that forces a candidate to choose between not speaking in excess of the voluntary limits or triggering a higher contribution limit for his or her opponent.”

At a Cato Institute-sponsored panel discussion Tuesday, CCP Chairman Brad Smith and Patton Boggs attorney William McGinley elaborated on the latest congressional attack on free speech-the DISCLOSE Act.

The Director of Cato’s Center for Representative Government, John Samples, who moderated the event, has a podcast today focusing on the DISCLOSE Act. Video of Tuesday’s event will eventually be posted on the Cato Institute website.

Smith explained that the DISCLOSE Act seeks to make illegal a large amount of political activity allowed even before the Supreme Court’s landmark decision in Citizens United v. Federal Election Commission, such as issue ads. Smith said that Democrats are using Citizens United-federally and in states-to press legislation that would enact broad campaign finance restrictions not even addressed in Citizens United. As White House Chief of Staff Rahm Emanual has explained, “You never want a serious crisis to go to waste.” Smith cited Vermont as one such state that had never attempted to restrict independent expenditures by corporations until after the Citizens United decision. Suddenly, Democrats sensed an opportunity to exploit this phony “crisis.”

McGinley focused on the more practical issues that the DISCLOSE Act would foist on candidates, businesses, nonprofits and other political speakers. McGinley began by stating that two major political speech facts need to be understood while crafting legislation. He explained that political speech is a ‘give and take’ that must have the ability to be nimble, and that political speech requires money to get a message out to the American public. He remarked that the DISCLOSE Act would destroy an advocate’s ability to be nimble and give the advantage to the political opponent because a speaker would be forced to telegraph their intentions.

Furthermore, he said  the amount of paperwork and confusion that would occur prior to the 2010 election among non-profits and corporations would be vast because DISCLOSE would completely alter the campaign finance system, introduce prior restraint and require tedious steps such as forcing candidates to certify that no campaign staff are foreign nationals. McGinley said that disclosing donors to independent groups and forcing them to appear in campaign advertisements is unnecessary, particularly because some large donors might not support specific messages, and would ‘chill speech.’ McGinley finished by contemplating the effect that the DISCLOSE Act will have on the Internet, including a continuing threat to the political speech of bloggers.

Finally, a brief question and answer section brought up numerous questions on the DISCLOSE Act, but the most significant question related to the National Rifle Association’s negotiated exemption from the DISCLOSE Act-the Shotgun Sellout.. McGinley said this exemption would make the DISCLOSE Act less likely to withstand constitutional scrutiny because it allowed Congress to pick a “preferred class of speakers, while silencing the rest.” The DISCLOSE Act is likely to come up for a vote within the next few days.

As Michigan contemplates potential legislative limitations on First Amendment rights, one common theme has emerged about the legitimacy of those actions: they are unconstitutional. Michigan joins a notorious fraternity of states that have legislated in excess while attempting to “remedy” the perceived injustice of the Supreme Court ruling Citizens United v. Federal Election Commission.

In hearings held earlier this week, a variety of stakeholders in the campaign financing process, including the Center for Competitive Politics, submitted testimony concerning legislation limiting the ability of corporations to be involved in the political process in Michigan. Michigan’s proposed remedy has been derided by all sides and reeks of a partisan power-play. These seven Michigan bills (one bill would simply apply the restrictions to unions as well) place arduous hurdles in the way of corporations (including nonprofits) exercising their First Amendment rights. One bill would require all shareholders in a publicly traded company to be informed of the prospect of an independent expenditure 30 days in advance. Additionally, any corporation with even a singleforeign shareholder is barred from making a political statement in the public arena.

By now, you’ve probably read the Wall Street Journal editorial, “Free Speech for Some; Unions get a pass from new campaign finance disclosure rules.”

The ghostwriters of the Detroit News, i.e. their editorial board, also make a pretty good case for why DISCLOSE seems to intentionally exempt unions from some of the most burdensome parts of the proposed Rubix cube of regulation: “Democrats’ campaign finance bill excuses unions from limits placed on corporations.” Maybe that’s why the AFL-CIO commended the effort and broad contours of the Orwellian-named “Democracy is Strengthened by Casting Light on Spending in Elections,” after filing a brief supporting Citizens United with the Supreme Court. Nonetheless, a person familiar with the union’s position explained that the bill has serious flaws.

The Washington Examiner offers “For Dems, new finance law may be a matter of survival.” Brad Smith explains why muzzling the marketplace of ideas in the summer before mid-term elections might not be so hot: “If people can discourage negative ads, it almost always benefits incumbents,” said Bradley Smith, chairman of the Center for Competitive Politics and a former chairman of the Federal Election Commission.

The broadcast industry does not approve the message of the DISCLOSE Act. Why? Probably because it bails out candidates and major parties at the expense of everyone else—broadcasters, independent groups, third parties, etc. Capitol Hill publications The Hill and Roll Call both focus on this developing static… The Hill: “Broadcasters group opposes ad-rate language in Dems’ campaign finance bill.” CQ-Roll Call: “Broadcasters Air Gripes With Political Ad Bill.”

According to media reports, Rep. Chris Van Hollen and Sen. Chuck Schumer will finally unveil their bill of campaign finance restrictions today. Stick with the Center for Competitive Politics’ blog for comprehensive analysis of the bill throughout the day.

Politico reports that Van Hollen has persuaded one more Republican, Rep. Walter Jones, to sponsor the DISCLOSE Act, which would subvert the Supreme Court’s recent ruling in Citizens United v. Federal Election Commission: “The goal is partly to discourage the types of previously prohibited spending legalized when the Supreme Court in a 5-4 decision ruled in favor of the conservative non-profit group Citizens United, which had argued that its free speech rights were impinged by decades of law restricting political spending by corporations, unions and other organizations.”

The addition of Jones is no surprise as he—along with previously announced Republican co-sponsor Rep. Mike Castle—is one of just three Republicans co-sponsoring a bill to provide congressional candidates with taxpayer financing for their campaigns. Castle and Jones are the only two Republicans so far supporting the bill—21 Republicans still serving in Congress voted for McCain-Feingold in 2002.

The primary reason we have a First Amendment is that we don’t trust government to regulate political speech in the public interest. The framers understood that if government can regulate political speech, there will be an almost irresistible urge to use such regulation for partisan advantage, and to silence political speakers opposed to the majority.

Both of these problems are on display in the so-called “DISLCOSE Act” (“Democracy is Strengthened by Casting Light on Spending in Elections Act”—you know a law is trouble when it requires a gimmicky name). DISCLOSE purports to be a “response” to the Supreme Court’s decision in Citizens United v. FEC. In that case, the Court reached the thoroughly unremarkable conclusion that the government cannot censor speech merely because it comes from a corporation. It rejected the government’s argument that it could censor books and movies merely because they are published or distributed by corporations, such as Random House, Barnes & Noble, Tri-Star, Cinemark Theaters, or Dog Eat Dog Productions, the company that produced some of Michael Moore’s political films. (The Court did not disturb the prohibition on corporate political contributions to candidates and parties campaign funds).

Democrats have reacted with near hysteria, and the reason seems to be that they believe that corporate political speech tends to support Republicans. Drafted behind closed doors and scheduled for action without committee hearings, “DISCLOSE” is sponsored by Sen. Chuck Schumer, former chairman of the Democratic Senatorial Campaign Committee, and Rep. Chris Van Hollen, Chairman of the Democratic Congressional Campaign Committee. Letters from Republican leaders asking to participate in the process have gone unanswered.

The sponsors have managed to scrape up one GOP co-sponsor out of 218 Republicans in Congress—Delaware Congressman Mike Castle. Twenty other Republicans who voted for “McCain-Feingold” are still in Congress, including Sen. McCain, but none have signed on to the bill…

To read the rest of this post on Politico‘s Arena, follow this link.