We Disclose: Bill Would Limit Political Speech

By May 20, 2010Regulations

We have always thought that that the merit of legislation in Congress is in inverse proportion to the forced cleverness of its acronymn.

The DISCLOSE Act (S. 3295 and H.R. 5175) is a doozy, its title representing Democracy is Strengthened by Casting Light on Spending in Elections Act, but its goal really to limit political speech that lies at the heart of our representative democracy.

Eight former members of the Federal Elections Commission wrote an op-ed that appeared in Wednesday’s Wall Street Journal explaining how the legislation is an affront to the Bill of Rights. From “Chuck Schumer vs. Free Speech“:

[We] believe that the bill proposed on April 30 by Sen. Chuck Schumer and Rep. Chris Van Hollen to “blunt” the Supreme Court’s decision in Citizens United v. FEC is unnecessary, partially duplicative of existing law, and severely burdensome to the right to engage in political speech and advocacy.

Moreover, the Democracy Is Strengthened by Casting Light On Spending in Elections Act, or Disclose Act, abandons the longstanding policy of treating unions and businesses equally, suggesting partisan motives that undermine respect for campaign finance laws.

The former commissioners note that the FEC already regulates 33 types of contributions and speech and 71 different types of speakers.

Those regulatory burdens often fall hardest not on large-scale players in the political world but on spontaneous grass-roots movements, upstart, low-budget campaigns, and unwitting volunteers. Violating the law by engaging in forbidden political speech can land you in a federal prison, a very un-American notion. The Disclose Act exacerbates many of these problems and is a blatant attempt by its sponsors to do indirectly, through excessively onerous regulatory requirements, what the Supreme Court told Congress it cannot do directly—restrict political speech.

Perhaps the most striking thing about the Disclose Act is that, while the Supreme Court overturned limits on spending by both corporations and unions, Disclose seeks to reimpose them only on corporations.

An article in Reason also explains how the legislation would exempt the old-line media operations, i.e., newspaper editorialists, from the speech and press restrictions, but apply them to new media like bloggers. From “From Banning Books to Banning Blogs“:

The bill, however, would radically redefine how the FEC regulates political commentary. A section of the DISCLOSE Act would exempt traditional media outlets from coordination regulations, but the exemption does not include bloggers, only “a communication appearing in a news story, commentary, or editorial distributed through the facilities of any broadcasting station, newspaper, magazine or other periodical publication…”

In Citizens United, the Supreme Court explicitly rejected disparate treatment of media corporations and other corporations (including nonprofit groups) in campaign finance law. “Differential treatment of media corporations and other corporations cannot be squared with the First Amendment,” Supreme Court Justice Anthony Kennedy wrote for the majority.

No legitimate justification exists for excluding media corporations from regulations on political speech applicable to other corporations, unless the goal is to gain the support of editorial boards funded by the New York Times Co.

If the sponsors of the legislation really want to practice transparency, they should find a new, painfully arch yet more accurate acronym to apply to their bill. They’re displeased by political speech, so how about DISPLSD, for Democracy Is Served by Placing Limits on Speech and Debate? It is, after all, their argument.

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