First Amendment Archives - Shopfloor

We Must Continue to Fight to Protect the First Amendment

By | General | No Comments

NAM President and CEO Jay Timmons warned of the assault on the business community’s right to advocate its priorities in his Member Focus column. A right guaranteed to all political actors by the First Amendment regardless of their point of view.

Last Friday Senate Republican Leader Mitch McConnell delivered a speech to the American Enterprise Institute about the growing threats against the First Amendment.  He warned specifically about government agencies’ attempts to prevent speech, “Right now, there’s an effort over at the FCC to get groups that buy campaign ads to disclose their supporters. This is utterly irrelevant to the mission of the FCC. We need to say so. The SEC is under pressure right now to force publicly-traded companies into disclosing all their political spending, even though it has no core interest in knowing what political causes companies support. This proposal doesn’t protect shareholders, and it doesn’t lead to better corporate governance.”

As Senator McConnell urged in his speech, we must continue to fight against and call out attacks on the First Amendment regardless of the target. Our nation is the strongest when all voices can be heard in the political process and none are singled out or discouraged.

The NAM will continue to work to protect the First Amendment rights of manufacturers and their ability to participate in the political process. Manufacturers have the right to weigh in and voice their concerns about policies impacting their businesses and their ability to create jobs. Continued efforts in Congress to weaken First Amendment protections will only hurt our democracy.


President’s Draft Order Politicizes, Damages Federal Contracting

By | First Amendment and Lobbying | No Comments

The National Association of Manufacturers joined 87 other business groups and trade associations in a letter to President Obama on Monday night, raises numerous objections to a draft executive order that would require disclosures of campaign contributions by select parties involved in federal contracting.

The draft order is an attack on the First Amendment, as the letter states, suffers from severe legal and policy defects that would, if signed, immediately damage the federal contracting process.

From the letter:

The executive order would make every company that tries to contract with the federal government disclose spending that is confidential and used to fund core, First Amendment-protected political speech. Also troubling is the executive order’s reach beyond companies to their individual officers and directors, who would be forced by the executive order to disclose personal political spending undertaken with their own assets. This aspect of the order will both impair individuals’ First Amendment freedoms and interfere with the relationships between companies and their employees.

The political spending covered by the draft executive order is protected by the First Amendment and may not be interfered with absent an important governmental interest. It is quite clear, however, that despite perfunctory language to the contrary, the draft executive order is not motivated by a desire to improve the federal procurement system or any other potentially legitimate governmental interest. Indeed, the federal procurement system already has several built-in safeguards that work quite well to ensure that contract awards are based on the merits of the bid proposal.

Rather than strengthening these existing safeguards, the draft executive order would politicize the procurement process. The proposed order will either encourage covered speakers to refrain from exercising their constitutional speech rights so as to avoid jeopardizing their competitiveness for federal contracts, or it will encourage speakers to alter their political messages in ways perceived to increase their chances of being awarded federal contracts. Either effect is a problem under the First Amendment.

Thanks to the U.S. Chamber’s blog, the Chamber Post, for highlighting the letter.

And here’s a good summary of the issues from Heritage’s Hans von Spakosvky in The Examiner, “DISCLOSE executive order would politicize federal contracting.” Hans is a former member of the Federal Election Commission.

White House May Try to Limit Speech Through Executive Order

By | First Amendment and Lobbying, General | One Comment

Hans von Spakovsky, a former member of the Federal Elections Commission and now a Heritage scholar, breaks the news that the White House is considering ways to impose provisions of the anti-speech DISCLOSE Act through executive order.

From “LEAKED: Obama Executive Order Intends to Implement Portions of DISCLOSE Act

An impeccable source has provided me with a copy of a draft Executive Order that the White House is apparently circulating for comments from several government agencies. Titled “Disclosure of Political Spending By Government Contractors,” it appears to be an attempt by the Obama administration to implement — by executive fiat — portions of the DISCLOSE Act.

This was the bill introduced last year by Sen. Chuck Schumer and Rep. Chris Van Hollen to overturn the Supreme Court’s decision in Citizens United v. FEC. The bill had onerous requirements that were duplicative of existing law and burdensome to political speech. It never passed Congress because of principled opposition to its unfair, one-side requirements that benefited labor unions at the expense of corporations. Democratic commissioners at the Federal Election Commission then tried to implement portions of the bill in new regulations. Fortunately, those regulations were not adopted because of the united opposition of the Republican commissioners.

As my source says:

It really is amazing — they lost in the Supreme Court, they lost in Congress, they lost at the FEC, so now the president is just going to do it by edict.

Amazing, but typical. The EPA is attempting to impose limits on greenhouse gas emissions despite clear opposition from Congress, the NLRB is busy enacting all sorts of pro-union provisions that could never pass congressional muster, and the President just issued a signing statement on White House “czars” proclaiming his intention of ignoring congressional appropriations. (Hugh Hewitt examines the trend in his latest column, “Liberals’ impatience with democracy, rule of law is growing.”)

The DISCLOSE Act was an ugly attempt to limit political speech based on who was expressing that speech. (Earlier Shopfloor posts.) The legislation failed in Congress last year. For the sake of the First Amendment, it should stay dead.

Misrepresenting the DISCLOSE Act, Yet Again

By | First Amendment and Lobbying | No Comments

Several Senators — we’ve heard Sen. Ben Cardin (D-MD) and Sen. Sheldon Whitehouse (D-RI) — have taken to the Senate floor today in anticipation of tomorrow’s vote on the DISCLOSE Act.  Sen. Whitehouse is being especially extreme in his attacks, calling the Supreme Court a “radical group,” making accusations about “corruption” and money laundering, and now claiming that the court has “opened the floodgates to foreign corporations” to “drown out American voters” and buy elections.

Not true.

Sean Parnell at the Center for Competitive Politics has been watching the Senate speeches, too, and given his detailed knowledge of the legislation and the politics involved, we’ll allow him to correct the falsehoods.

Listening to them speak, it’s become even more clear than ever that not only are the Senate advocates of the DISCLOSE Act wrong (a subjective opinion, of course, although one we can amply defend) but they are almost completely ignorant of what this legislation would do, what current law on the subject is, and what the court ruled in Citizens United.

All of the things being said that are simply factually incorrect, at least all that I heard, have been covered by us here at CCP repeatedly in the past. The plainly false statements include:

This is just a brief sampling of the transparently inaccurate statements made by Democratic Senators on the floor so far today regarding the DISCLOSE Act, and doesn’t even begin to address things like the claim that a bill that prohibits more than half the largest companies in the country from speaking without limiting a single union somehow represents a fair and even-handed treatment of the business and labor communities.

What’s so astonishing is that the Senate supporters of the bill believe (or claim to believe) that the American public wants Congress to act on this legislation, supposed campaign finance reform that is really an attack on the First Amendment.

We believe the public would prefer to see the Senate consider measures to strengthen the economy, keep tax rates under control, and improve U.S. competitiveness.

Note — 4:30 p.m. corrected the state designation for Sen. Whitehouse.

No Time for Vote on Tax Rates, but to Restrict Political Speech, Sure!

By | Briefly Legal, First Amendment and Lobbying, Labor Unions | No Comments

UPDATE (11:30 a.m.): The National Association of Manufacturers this morning against sent our “Key Vote” letter opposing
S. 3628, the DISCLOSE Act, to the U.S. Senate. The letter was initially distributed in July with the first Senate vote on the bill. …

The Hill, “Dems plan last-ditch vote on Disclose Act“:

Democrats plan to rally their troops for the final stretch of the campaign season by bringing up a campaign-finance transparency bill.

A spokesman for Senate Majority Leader Harry Reid (D-Nevada) on Tuesday announced plans for a last-ditch vote on the measure, dubbed the Disclose Act. A vote on the bill is expected Thursday.

Politico, Ben Smith writing on Tuesday, “DISCLOSE vote will wait for high-dollar fundraiser

Senate Majority Leader Harry Reid just scheduled a vote on the DISCLOSE Act, which would force donors to publish their involvement in political ad campaigns, for Thursday.

Why not tomorrow [Wednesday], you might ask? Because there are no votes in the Senate scheduled for tomorrow. And that may be, in part, because there’s something else going on tomorrow: A big New York fundraiser for the Senate Democrats.

“I would be honored if you would join me for a very special reception with President Barack Obama on Wednesday, September 22, 2010 in New York. We have a limited numbers of tickets available to our general reception. If you would like to join us, please contact …[redacted]@dscc.org.”

Surprised the vote wasn’t scheduled as part of the Defense authorization debate.
Read More

The Priority is Jobs, Jobs, Jobs. That and Limiting Political Speech

By | Briefly Legal, First Amendment and Lobbying, Labor Unions | One Comment

We’re struggling to make the connection: Passage of the DISCLOSE Act will create jobs, how exactly?

From Hotline on Call, “DISCLOSE Act Will Get Second Look”:

Senate Dems plan to bring up a campaign finance measure once again, according to the bill’s supporters who hope to win cloture by wooing key GOP senators.

The DISCLOSE Act, which could not clear Senate hurdles when it came up just before the Aug. recess, will head back to the floor for a vote when the Senate returns next month, according to spokespeople for Senate Maj. Leader Harry Reid and Sen. Chuck Schumer (D-NY), the bill’s lead sponsor.

The DISCLOSE Act is to free speech as the Employee Free Choice Act is to freedom of association.

That is, antithetical.

On July 27, the Senate failed to invoke cloture on S.3628, the DISCLOSE Act, by a vote of 57-41. Senate Majority Leader Harry Reid voted no in order to retain his parliamentary ability to bring the measure back up.

To again quote from the National Association of Manufacturers’ “Key Vote” letter in opposition to the bill:

Put simply, this bill threatens First Amendment freedoms and is a direct assault on the U.S. Constitution. Its purpose is to hinder the ability of organizations, including associations such as the NAM, to give a voice to their members’ views and priorities. The U.S. Supreme Court repeatedly has recognized that voluntary associations are key participants in the public debate, and that government’s attempts to curb participation in associations in order to stifle their voice in the public debate violate the First Amendment. There need be no further discussion on whether First Amendment freedoms should apply to some and not to others.

(Hat tip: Center for Competitive Politics, which posts, “DISCLOSE back from the dead?”

Senate Turns Back Disclose Act, 57-41

By | Briefly Legal, First Amendment and Lobbying | 2 Comments

The cloture vote to end debate on S.3628, the DISCLOSE Act, failed by a vote of  57-41.

 The First Amendment remains safe for one more day.

Senate Majority Leader Reid voted no, preserving the right to bring the bill back — “reconsideration” — at some future date. Just a gesture, we think. Otherwise, it was a partisan vote, Democrats in support, Republicans opposed. [Here’s the roll call vote.]

Again, here’s the National Association of Manufacturers’ Key Vote letter opposing the legislation. NAM Executive Vice President Jay Timmons also issued a statement urging the bill’s defeat.

In the just-completed debate, Sen. Mitch McConnell of Kentucky methodically demolished the arguments for the speech-limiting legislation. The Republican leader frankly addressed the partisan issues at play and added substantive critiques to make his case:

In order to make sure this bill isn’t held up by something as inconvenient as a challenge on first amendment grounds, its authors have made sure no court action interferes with their new restrictions this election cycle and maybe next. They add multiple layers of review. …

The authors of the bill labored behind closed doors to decide who would retain the right to speak; In direct defiance of what the Supreme Court made clear this past January, when Justice Kennedy, writing for the majority, said, “[W]e find no basis for the proposition that, in the context of political speech, the government may impose restrictions on certain disfavored speakers.”

That is precisely what the Disclose Act does. It imposes restrictions on speech. And I would note that the one category of speakers upon whom the so-called reformers have bestowed the greatest speech rights in this bill are corporations that own media outlets. So a company that owns a TV network, newspaper or blog can say what they want, when they want, as often as they want.

Yes, newspaper editorialists often prefer to ignore that last point.

UPDATE (4:30 p.m.): The Center for Competitive Politics, an essential resource throughout Congress’ consideration of this ill-conceived bill, has issued a statement, “DISCLOSE Act blocked in Senate.” As is the Center’s wont, the release contains numerous substantive examples of how the bill targeted specific groups with its speech restrictions: Read More

NAM Key Votes Against Anti-Speech DISCLOSE Act

By | Briefly Legal, First Amendment and Lobbying | One Comment

The National Association of Manufacturers has just sent a “Key Vote” letter to the U.S. Senate, expressing strong opposition to S. 3628, the Democracy is Strengthened by Casting Light on Spending in Elections (DISCLOSE) Act.


Put simply, this bill threatens First Amendment freedoms and is a direct assault on the U.S. Constitution. Its purpose is to hinder the ability of organizations, including associations such as the NAM, to give a voice to their members’ views and priorities. The U.S. Supreme Court repeatedly has recognized that voluntary associations are key participants in the public debate, and that government’s attempts to curb participation in associations in order to stifle their voice in the public debate violate the First Amendment. There need be no further discussion on whether First Amendment freedoms should apply to some and not to others.

The DISCLOSE Act would curb the First Amendment rights of many companies that regularly participate in contracts with the federal government or have limited foreign ownership or control. We believe its onerous disclosure provisions could easily be used to create “political enemies” lists or to promote boycotts – all aimed at chilling companies’ legitimate advocacy activities. It is unconscionable that these same restrictions do not apply equally to unions representing government workers or unions with foreign members or directors.

The NAM uses “Key Vote” letters to rate a member of Congress’ voting record on manufacturing issues.

Earlier today, “DISCLOSE Act: Still Chilling Political Speech

DISCLOSE Act: Still Chilling Political Speech

By | Briefly Legal, First Amendment and Lobbying | 2 Comments

President Obama is scheduled to make a statement in the White House Rose Garden at 2:20 p.m. today about the DISCLOSE Act, pending legislation in the Senate that supporters call “campaign finance reform” but is really legislation meant to chill political speech during the 2010 campaign.

Sen. Charles Schumer (D-NY) on Thursday introduced a new, slightly modified of the DISCLOSE Act, the legislative response to the U.S. Supreme Court’s decision in Citizens United v. FEC, which affirmed the First Amendment rights of groups — including trade associations and corporations — to spend money to express a political point of view. The new bill, S. 3628, offers marginal improvements, but the underlying attack against political speech remains unacceptable.

The Schumer changes — or change: requiring disclosure when unions transfer funds among affiliaites — allow supporters to pretend sans guffaw that the bill isn’t quite as one-sided for Big Labor as critics claim.

Sean Parnell of the Center for Competitive Politics outlines why the bill remains hostile to business while favoring labor. From “DISCLOSE Act still overwhelmingly favors unions“:

Then as now, the two main provisions of DISCLOSE that severely restrict the First Amendment rights of business corporations while ignoring unions with similar alleged conflicts are the ban on government contractors and on business corporations with even minimal foreign investment making expenditures.

The contractor ban is the most sweeping and far reaching, and would effectively prohibit political speech by most large corporations in the country. The fact is that most companies of any large size in the country probably has some government contract…[snip]

Meanwhile, unions who represent workers at these companies are free to run all the ads they want. While there have been a few feeble attempts to justify this sort of disparity, the fact is that the likelihood of undue influence, corruption, or its appearance is identical at government contractors as it is with the unions at government contractors.

The conventional wisdom is that Senate Majority Leader Reid is bringing the DISCLOSE Act to a vote this week as political calculation, knowing that he lacks the votes to break a filibuster but still believing the measure will be popular with voters. But the polling we’ve seen on the issue has been tendentious, designed to produce the desired results and sound-bites about “foreign oil companies drowning out the public.” Supporters of the bill are the usual suspects: either partisans or goo-goo activists who are offended by robust speech.

Opponents, on the other hand, span the political spectrum, from the American Civil Liberties Union — which urged a Senate no vote today — and the National Right to Life Committee, which sent Senators a letter expressing strong opposition last week. What unites these groups is a belief in the rights of citizens to express their political views.

We await the President’s remarks this afternoon, hoping that he, too, believes in that right.

House Votes Against First Amendment, Passes DISCLOSE Act

By | Briefly Legal, First Amendment and Lobbying, Labor Unions, Regulations | No Comments

The House has just voted to pass H.R. 5175, the DISCLOSE Act, 219-206, legislation to deprive people of their constitutional rights based on who is speaking and the content of their speech. The debate was profoundly cynical as supporters of the bill claimed it was all about disclosure, even as they carved out specific exemptions that let labor unions escape transparency and engage in political activities denied to corporations and other, less favored organizations.

The cynical, partisan nature of the bill can be demonstrated by two things:

1. The bill, once signed into law, goes into effect within 30 days, with no opportunity for the Federal Election Commission to draft rules to guide the implementation and enforcement of the law. The bill includes criminal penalties for violations, but provides citizens no clear way to know whether they might be committing a violation. The uncertainty and risk will chill political speech — just time for the November 2010 elections.

2. The bill does not contain any provisions to permit expedited judicial review. The McCain-Feingold campaign finance regulation bill allowed challenges to the law to move immediately to  a three-judge panel in U.S. District Court for the District of Columbia. If supporters of H.R. 5175 truly believed their bill was constitutional, they would have embraced such an expedited review. Instead, the provision was kept out of the bill, and a motion to recommit from Rep. Dan Lungren (R-CA) that included McCain-Feingold-like review language was voted down, 208-217. (Roll Call Vote.)

It’s a sad day for the Constitution.

UPDATE (5:10 p.m.): We Tweeted the entire debate, starting at 10:50 a.m. or so. You can follow the posts here. The morning debate on the rule featured the low points of the day, including behavior that indicated a belief that saying “BP! BP!” amounts to an argument.