The responsible staff at the National Association of Manufacturers have reviewed the manager’s amendment to H.R. 5175, the DISCLOSE Act, and concluded that the latest version of the bill just worsens the legislation’s already unconstitutional restrictions on speech. The previous Key Vote letter opposing H.R. 5175 stands:

Put simply, this legislation threatens First Amendment freedoms and is a direct assault on the U.S. Constitution. Its purpose is to hinder groups, including associations such as the NAM, which give voice to their members’ views and priorities. The 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.

As drafted, H.R. 5175 would curb the First Amendment rights of many corporations that regularly participate in contracts with the federal government or have limited foreign ownership or control. We believe the bill’s 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 First Amendment restrictions do not apply equally to unions representing government workers or unions with foreign members or directors.

Key Vote letters are used to rate a member of Congress’ record on manufacturing issues.

Your correspondent intends to Tweet the House debate on the rule and H.R. 5175 @Shopfloor_NAM, using the #DISCLOSE hashtag. House convenes at 10 a.m.

The Center for Competitive Politics passes on some important analysis from House staffers about H.R. 5175, the DISCLOSE Act.

The Manager’s Amendment to the DISCLOSE Act, slated for a Thursday floor vote in the House, seems to contain a glaring carve out for the benefit of labor unions, according to a quick analysis by House Administration Committee staff.

The Brady amendment would exempt from reporting requirements transfers between affiliated entities up to $50,000 (p. 10). Even more beneficial to labor unions the bill now reads that if the transferred amount is attributable to individual dues paid on a regular basis then the transfer amount is attributable to the individual rather than the organization (p. 14-15). The average amount of individual, annual dues ($377) is well below the bill’s threshold of $600 for mandated disclosure.

So, in effect, unions would be able to shift unlimited amounts of money around through various affiliated entities and never have to report or disclose any of it. The definition of “affiliate” includes two organizations that are affiliated with the same organization, so the shell game possibilities are endless.

Don’t believe the acronym, the bill is about loopholes and special treatment for politically favored groups.

More from The Daily Caller:

House Democratic leadership is aiming to pass its campaign spending bill on Thursday, while Democrats are defending it from criticism that it includes loopholes for special interests.

The Daily Caller reported Monday that the legislation, called the DISCLOSE Act, shields labor unions from many of its requirements.

For example, restrictions on companies that received government bailouts during the financial crisis apply to businesses, but not unions: Under the DISCLOSE Act, General Motors can’t tell you who to vote for, but the United Auto Workers union can.

Despite heavy pressure from labor unions, supporters have not been able to force the Employee Free Choice Act through Congress this year. Hell of a fall-back position to mollify labor: We’ll limit speech in all federal elections, not just union ones.

UPDATE (12:05 p.m.): More from the Center for Competitive Politics. The lefty Mother Jones publication reported AFSCME’s obviously successful efforts to win this exemption last week:

Mother Jones: “Labor, Guns, and Money”
June 17
AFSCME is trying to exempt state and local political organizations that accept soft money—that is, unrestricted contributions from individuals or groups—from being regulated under the bill. Under the DISCLOSE Act, such groups, which often receive union backing, would have to disclose their donors if their campaign ads reference a federal candidate. AFSCME opposes having to out itself as the backer of these state and local campaign efforts. “The problem is that we have local union affiliates—we have 4000 of them—that could make a contribution to one of these entities…which could trigger these very detailed disclosure requirements,” said Loveless. He said that AFSCME was “trying to protect these local affiliates” from having to make such disclosures.

When the House debates H.R. 5175, DISCLOSE Act, today, there will be no consideration of amendments to hold labor unions to the same limits on speech the legislation applies to corporation, thanks to votes taken Wednesday by the House Rules Committee.

The committee’s report summarizes the blocked amendments:

Rules Committee record vote No. 454

Date: June 23, 2010.

Measure: H.R. 5175.

Motion by: Dr. Foxx.

Summary of motion: To make in order and provide appropriate waivers for an amendment by Rep. Lungren (CA), #16, which would provide that the labor unions must certify no dues were received from foreign nationals prior to making political expenditures.

Results: Defeated 2-7.

Vote by Members: McGovern–Nay; Hastings (FL)–Nay; Matsui–Nay; Perlmutter–Nay; Pingree–Nay; Polis–Nay; Dreier–Yea; Foxx–Yea; Slaughter–Nay.

Rules Committee record vote No. 455

Date: June 23, 2010.

Measure: H.R. 5175.

Motion by: Dr. Foxx.

Summary of motion: To make in order and provide appropriate waivers for an amendment by Rep. Lungren (CA) and Rep. Gingrey (GA), #17, which would provide that the prohibition on expenditures by government contractors shall also apply to labor unions representing employees of those contractors.

Results: Defeated 2-7. (continue reading…)

Oh, don’t complain about the labor unions. They don’t have any political power, and they certainly don’t try to influence elections. So what if the DISCLOSE Act doesn’t hold them to the same laws, the same limits on political speech, that apply to others?

Richmond Times-Dispatch editorial, “Full Disclosure: Oh, Yeah?“:

The Times-Dispatch endorses full and rapid disclosure of campaign contributions. We oppose almost all restrictions of campaign finance, but believe that disclosure would allow the voters the option of weighing contributions as they decide whom to support. If a citizen refuses to vote for candidates receiving funds from the oil industry, then so be it. If another citizen is determined to vote against candidates subsidized by labor unions, then so be it as well. This newspaper also rejects attempts to stifle political speech under the guise of campaign finance reform. The First Amendment may be closer to an absolute than any other in the Bill of Rights.

As offensive as they may be, the details in the Disclose Act may mean less than their application. The bill would apply one standard to unions but far stricter standards to management. This is unjust and unfair and a typical partisan affront — and an insult to the Constitution. The bill could come up for a vote as early as today. It also could perish from a lack of enthusiasm. Virginians will be watching their senators, whose open opposition (or even indifference) to the measure could consign it to the dust heap where it belongs.

The vote is in the House today, but yes, the Senate will be next as backers of H.R. 5175, DISCLOSE Act, try to shove it through in time to squelch speech in this year’s Congressional elections.

Latest reports have the House Rules Commitee meeting at 3 p.m. on H.R. 5175, the DISCLOSE Act, meant to limit the speech of disfavored groups, with the intent of moving the bill to the House floor Thursday. As of 12:40 p.m., the meeting is not yet posted on the website: http://rules.house.gov

Rep. Dan Lungren (R-CA), the ranking member of the House Administration Committee, issued a statement protesting the Democrats’ failure to release the final text of the DISCLOSE Act before tomorrow’s floor consideration, “Will Democrats Release the DISCLOSE Act Before We Vote on It?” Lungren observes: “Sadly, the best way to study the details of this bill’s provisions and to learn about the authors’ latest negotiations allocating the right to free speech is to read about them in the newspaper.”

Transparency!

Meanwhile, more than 300 trade associations and other business groups sent a letter to the U.S. House today expressing strong objections to H.R. 5175. One fundamental point about the bill’s unconstitutionality: Favored groups, such as labor unions, escape the bill’s regulation of the First Amendment.

From the letter:

Schumer–Van Hollen flouts all of these [constitutional] principles through a thicket of new regulatory requirements that are intended to stifle corporate speech but will have no meaningful impact on labor unions. Its provisions include a blanket prohibition on election-related speech by certain government contractors. Thousands of corporations regularly participate in contracts with the federal government; under Schumer – Van Hollen, many of them are categorically barred from making their political views known. That prohibition on core political speech is flatly unconstitutional and directly inconsistent with the Supreme Court’s holding in Citizens United that Congress can prohibit political speech only where it has evidence of quid pro quo corruption. Citizens United, 130 S. Ct. at 910. There is no such evidence.

The bill imposes no comparable restrictions on labor unions that receive federal grants, negotiate
collective bargaining agreements with the government, or have international affiliates, even
though unions and their political action committees are the single largest contributor to political
campaigns and claim to have spent nearly $450 million in the 2008 presidential race.

The Hill reports on the letter in, “More than 300 organizations send letter opposing Disclose Act,” quoting a spokesman for the chief House sponsor, Rep. Chris Van Hollen (D-MD).

His spokesman, Doug Thornell, recently told The Hill that efforts to oppose the bill are the “last acts of desperation from powerful special interest groups to keep the American people in the dark” when it comes to uncovering influential political donors.

Powerful special interest groups? Well, from the list of groups signing the letter:

Crop Protection Association of North Carolina
Gillette (Wyo.) Chamber of Commerce
Management Association for Private Photogrammetric Surveyors
National Marine Manufacturers Association
Ohio Cast Metals Association
Regional Black Chamber of Commerce SFV
The Lodi District Chamber of Commerce
The Remanufacturing Institute

Quite the cabal. Yes, these special interests are so shadowy, so powerful that they and their members must lose their First Amendment rights.

Here is the polling memo released Monday by sponsors of H.R. 5175, the DISCLOSE Act, to claim that the public opposes the U.S. Supreme Court decision in Citizens United v. FEC and strongly supports the pending legislation in response.  The Hill had reported on the release of the document, but overlooked the key fact that it’s just rehash of past partisan polling.

Yes, it turns out sponsors are not even shopping new polling results, they’re just repackaging the old, DNC/Benenson Group polling from February. Old, partisan polling is being used to justify legislation to regulate and restrict the First Amendment.

Awful. Cynical and awful.

P.S. Here’s an example of the loaded questions, which produced the desired responses:

• 56% agree that “this Supreme Court Decision is wrong because it endangers our democracy and national interests by letting foreign corporations and those with ties to foreign governments spend millions to influence American elections.”
• Only 29% agree that the decision was right because it “overturned a law that limited the free speech of groups by preventing them from speaking out on political issues that affect them.” (BSG/DNC, 2/2/10)

From The Hill:

The House Rules Committee on Wednesday is expected to consider the Disclose Act, legislation authored by Rep. Chris Van Hollen (D-Md.) that requires greater disclosure on campaign funding.

The chamber could vote on the bill as early as Thursday and leadership is confident they will have the votes to pass it, according to a House aide.

Earlier on Tuesday, Van Hollen’s office released poll results showing the bill has overwhelming bipartisan support with 87 percent of Republicans and 91 percent of Independents supporting the bill. Over 90 percent of Democrats also support the measure.

That must be a disinterested, carefully balanced poll with questions designed to elicit useful responses from the public about their views on the First Amendment and campaign expenditures. We just need to check the polling document…

Unfortunately, Rep. Van Hollen’s office website does not have the full survey, including the polling document, online. Neither is it online at the Democratic Congressional Campaign Committee, which Van Hollen chairs. We don’t find it online anywhere.

Guess the commitment to transparency only goes so far.

P.S. As of 8:37 a.m., the House Rules Committee does not have any meeting listed on H.R. 5175.

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 …

Politico publishes a collection of opinion on H.R. 5175, the DISCLOSE Act, today in its Arena Digest feature, “Arena Digest: What do you think about the DISCLOSE Act?” Two that jumped out:

Martin Frost, attorney and former Democratic congressman

Will someone please remind Congress that creating jobs is more important than fiddling with the campaign laws? Forget about it.

We might phrase that a little differently, “Will someone please remind Congress that creating jobs is more important than abridging First Amendment rights?” Also, from Karen Kerrigan, president, Small Business and Entrepreneurship Council:

There’s one small problem with the DISCLOSE Act: It’s unconstitutional. The bill’s challenges go far beyond business-community opposition. Center-left groups like the American Civil Liberties Union have also weighed in against it. At its core, the bill picks which groups get First Amendment protections and which do not. Business organizations such as mine do not meet the clever specifications crafted to exempt specific groups; therefore, the voice of small business is effectively muzzled while larger interests are protected.

No House Rules Committee meeting scheduled yet on the bill.

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: (continue reading…)