The DISCLOSE Act, Statements, Commentary

The National Rifle Association issued a statement defending its deal with the House leadership on H.R. 5175, the DISCLOSE Act, which exempted the group from some of the more onerous disclosure requirements. From “The National Rifle Association On H.R. 5175, The Disclose Act“:

Through the courts and in Congress, the NRA has consistently and strongly opposed any effort to restrict the rights of our four million members to speak and have their voices heard on behalf of gun owners nationwide.  H.R. 5175 would put a gag order on the NRA during elections and threaten our members’ freedom of association, by forcing us to turn our donor lists over to the federal government.  We would also be forced to list our top donors on all election-related television, radio and Internet ads and mailings—even mailings to our own members.  We refuse to let this Congress impose those unconstitutional restrictions on our Association.

The American Civil Liberties Union opposes H.R. 5175. From its letter to the House:

The election of public officials is an essential aspect of a free society, and campaigns for public office raise a wide range of sometimes competing civil liberties concerns. Any regulation of the electoral and campaign process must be fair and evenhanded, understandable, and not unduly burdensome. It must assure integrity and inclusivity, encourage participation, and protect privacy and rights of association while allowing for robust, full and free discussion and debate by and about the candidates and issues of the day. Measures intended to root out corruption should not interfere with freedom of expression by those wishing to make their voices heard, and disclosure requirements should not have a chilling effect on the exercise of rights of expression and association, especially in the case of controversial politicalgroups. Small donations to campaigns – and contributions of any size to political communications that are wholly independent of any candidate for office – have not been shown to contribute to official corruption. Accordingly, disclosure of such donations serves no legitimate public purpose.

Unfortunately, the DISCLOSE Act would wipe away such donor anonymity –most notably, that of small donors to smaller and more controversial organizations, even when those donors have nothing to do with that organization’s political speech. It would also restrict speech rights in an arbitrary manner, favoring one type of organization over another. While this bill may have been intended to shine a light on the core funders of political advertising, it goes far beyond that goal. The DISCLOSE Act blurs the line between issue and campaign advocacy and puts at risk of exposure the heretofore confidential donor records of millions of Americans and thousands of legitimate nonprofit advocacy organizations.

The self-styled “watchdog” group and supporters of speech regulation, Citizens for Responsiblity and Ethics in Washington, issued a statement supporting the legislation even with the NRA’s exemption. Excerpt:

The overriding goal of the legislation – to ensure that corporations cannot use shadowy front groups, intermediaries, and third-party organizations to hide their involvement in American elections – remains unchanged even with this amendment. As the bill now stands, even an organization that has been in existence for over 10 years, has one million annual dues-paying members, operates in all 50 states, and receives less than 15 percent of its funds from corporations or unions would still have to disclose that the organization is paying for independent expenditures or electioneering communications. Therefore, in CREW’s view, the legislation even as amended continues to be far superior to the status quo.

We think Kimberly Strassel of The Wall Street Journal does a more accurate job of describing the overriding goal of the legislation — to chill political speech that runs contrary to the interests of the bill’s sponsors. From her column (subscription), “The NRA’s Political Sellout: Why is the gun rights lobby helping Chuck Schumer help unions?

Mr. Schumer isn’t arguing the new corporate rights under Citizen United; he’s been forthright that his goal is rather to embarrass companies out of exercising those rights. The bill will make companies “think twice,” he rejoiced. “The deterrent effect should not be underestimated.” Democratic incumbents won’t underestimate it.

And the unions? Carved out. The bill technically requires both corporations and unions to report donors of more than $600 a year. But that number wasn’t pulled out of a hat. The average dues of the nation’s 15 largest U.S. unions were $377 in 2004. And while government contractors are restricted, the bill contains no such bars for unions that receive federal money or have collective bargaining agreements with government. The AFL-CIO and SEIU can continue speaking loudly and anonymously.

As for CREW’s horror at “shadowy” groups, you know who hid in the shadows, writing under nom de plume so anonymity could protect their activism? The authors of The Federalist Papers.

The Examiner’s Tim Carney is one of the few conservative or libertarian-leaning columnists to cut the NRA some slack, writing today, “NRA isn’t the villain in the free-speech fight.”

Today, some conservatives wish the NRA were a different organization than it is. It is not a conservative lobby. It is not the right’s American Civil Liberties Union.

It is a gun rights group. On some occasions, the NRA has pushed pro-gun legislation that is anti-conservative — such as bills limiting private property owners from prohibiting legal guns.

The NRA hasn’t endorsed Van Hollen’s crooked bit of cynical politicking, and it isn’t critiquing anyone who fights the bill. It has just decided not to use gun-rights money to oppose a speech-rights bill.

And of course, the real villain here is Van Hollen, who — in the name of curbing the special interests — gave the biggest special interests a free pass.

Not sure the ACLU is the right analogy, though. National Right to Life seems more relevant — a group that stands up for the First Amendment even though its raison d’etre is something other free speech rights. National Right to Life opposes the DISCLOSE Act and in a June 15 letter to Congress, energetically objected to the NRA “carve-out.”

It is perfectly understandable that another advocacy group that has a centralized corporate structure, and a unitary national membership roll, should wish to protect the privacy rights of its donors, and to avoid some of the crippling administrative burdens and legal traps that would be imposed by multiple provisions of H.R. 5175. But what conceivable public policy justification can be offered for imposing those very same burdens on much smaller organizations that are far poorer in the financial, administrative, and legal resources that would be demanded by the proposed array of legal traps, overlapping and accelerated reporting requirements, verbose “disclaimers,” and other devices contained in H.R. 5175 — requirements that were clearly crafted for the very purpose of deterring speech?

Certainly, there can be no constitutional justification for the carve-out distinction. The U.S. Supreme Court has ruled that the First Amendment protects the right of incorporated groups of citizens to communicate with the public to express opinions about the actions of those who hold or seek federal office. The authors of the DISCLOSE Act have demonstrated that their overriding intent is to impede and deter the exercise of that constitutional right. The justifications offered for such legislation rest on the unspoken premise that the American people lack the capacity to properly evaluate advertising or other forms of mass communication, so the incumbent lawmakers will take it upon themselves to protect their hapless constituents from such troublesome communications, in order to prevent them from being “unduly influenced” — and all of this is being deemed necessary to “protect democracy.”

Now THAT’s a watchdog group.

Join the discussion One Comment

  • N. Polimeni says:

    The public would want to know what big corporate or wealthy donors are supporting your activities.

    Maybe you can get an exemption when it comes to private individuals not representing a commercial or industrial or corporate intersts.

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