DISCLOSE Act: Politics Sacks Principle

The White House has issued a light-on-substance Statement of Administration Policy on H.R. 5175, the DISCLOSE Act:

The Administration strongly supports House passage of H.R. 5175. The Administration believes the DISCLOSE Act is a necessary measure so that Americans will know who is trying to influence the Nation’s elections. H.R. 5175 also prevents those who should not interfere in the Nation’s elections – like corporations controlled by foreign interests – from doing so. Unless strong new disclosure rules are established, the Supreme Court’s decision in the Citizens United case will give corporations even greater power to influence elections. This bill is not perfect. The Administration would have preferred no exemptions. But by providing for unprecedented transparency, this bill takes great strides to hold corporations who participate in the Nation’s elections accountable to the American people. As this is a matter of urgent importance, the Administration urges prompt passage of the DISCLOSE Act.

If you want SAPs to carry more force than, say, a smart-alecky comment from the press secretary at a White House briefing, you have to engage the criticism of the legislation. The White House makes this claim: “The Administration believes the DISCLOSE Act is a necessary measure so that Americans will know who is trying to influence the Nation’s elections,” but then ignores the fact the bill exempts labor unions from the disclosure requirements imposed on corporations. The bill creates disparate treatment of political speech depending on whether the speaker is favored or disfavored.

But apparently supporters are going to try to bully instead of persuade members of Congres into voting for the bill. Greg Sargent, a Washington Post political blogger, has posted a copy of the House Democrats’ internal talking points. (Kudos to Mr. Sargent.) The debate boils down to this:

Critic: I believe this bill is an affront to the First Amendment, for the following reasons.
Supporter: BP is bad!

If you want substantive analysis of the bill, you really have to turn the critics. The Washington Post published a letter to the editor Saturday from Bradley A. Smith, the former chairman of the Federal Elections Commission and now chairman of the Center for Competitive Politics:

How the Disclose Act would affect free speech and the NRA
In their June 17 op-ed column, ” . . . No, it’s a matter of election honesty,” Reps. Chris Van Hollen (D-Md.) and Michael Castle (R-Del.) concluded that the Disclose Act “simply places disclosure requirements on political activities.” This is not true. In fact, beyond its disclosure provisions, which for the most part simply duplicate existing laws and seek to burden speech with excessive regulation, the act would directly prohibit a great deal of political speech that was legal even before the Supreme Court’s decision in Citizens United v. Federal Election Commission.

Prior to Citizens United, corporations and unions were free to speak about officeholders and candidates, without specifically advocating their election or defeat, for all but the 30 days immediately preceding a primary or the 60 days immediately preceding a general election. The Disclose Act, however, defines literally thousands of both nonprofit and for-profit entities as “government contractors” and prohibits them from mentioning a political candidate or officeholder for a period starting 90 days before the primary and going straight through to the general election. In Illinois and Indiana this year, that would be a speech blackout of one full year. In virtually all states it amounts to a blackout of six months or more for thousands of potential speakers. It is even worse in presidential elections, where the blackout period starts 120 days before the New Hampshire primary, or around Labor Day 2011, and lasts through the 2012 general election.

It should be axiomatic that Congress cannot respond to a Supreme Court decision guaranteeing speech rights by limiting speech that was legal even before that decision.

Speech blackouts? Too bad the White House chooses in its SAP to ignore the legitimate criticism of the DISCLOSE Act’s unprecedented — UNPRECEDENTED — limits on political speech.

More …

  • Joint letter from 232 trade associations and activist groups, including the NAM, objecting to H.R. 5175, the anti-speech DISCLOSE Act.
  • NAM Key Vote letter.
  • NAM news release.  
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