It appears unlikely that H.R. 5175, the DISCLOSE Act, can be pushed through the Senate as quickly as it was shoved through the U.S. House. It’s not devotion to the First Amendment but rather practical scheduling matters and Senate rules that are slowing the bill’s consideration. We’ll take it …

National Journal, Rules of the Game column, “Any Hope For DISCLOSE Act?”

The bill, which sets out to shed light on corporate and interest group campaign spending, faces an uphill battle in the Senate. A constitutional challenge would be inevitable. And even if the legislation is enacted and upheld, it will do little to fundamentally shift the balance away from private money in American elections.

Even the political advantage Democrats may have hoped to gain by championing reforms is blunted by the perception that the DISCLOSE Act includes special carve-outs for the National Rifle Association and other influential groups.

Was it “championing reform” that was supposed to provide the political advantage? We thought it was the shutting up of critics. True, the House debate last week revealed populist talking points to accompany the claims of reform — BP is bad, Big Oil is bad, insurers are bad, corporations are bad, etc. But it’s hard to see how attacking the First Amendment is a political winner; the legislation looks like an act of cynical incumbent protection in an anti-incumbent year.

The Hill also speculated on the bill’s fate in the Senate in “Election clock ticks for campaign finance bill facing a crowded Senate agenda“:

Advocates of the Disclose Act have long pointed to July 4 as a deadline for enacting the law so that its provisions could be implemented and enforceable during the hotly-contested midterm congressional campaign. But with the Senate bogged down in fights over tax legislation, a Supreme Court nomination and energy proposals, that marker will almost surely pass without action on campaign finance.

“Every week we go past the July 4 recess is going to spill into the campaign season,” said Craig Holman, government affairs lobbyist for Public Citizen, a backer of the Disclose Act.

Both pieces cited were written before the death of Sen. Robert Byrd (D-WV), which further complicates schedules and attempts to break filibuster.

Maybe the anti-speech scheming was more Byzantine than we thought: Supporters of the DISCLOSE Act used an exemption to sucker the National Rifle Association into backing the bill, provoking a backlash from NRA members. At radio host and lawyer Hugh Hewitt writes in his Examiner column today, “NRA blew it big time on Disclose Act“:

So, another day, another jam-down — and another unforeseen eruption of populist blowback, this time not just against the Democrats but against the NRA as well. A significant portion of its membership is appalled by a bill that elevates the Second Amendment over the First.

The backpedaling has been furious as the Beltway Bigs among the gun folk have struggled to explain exactly what they were doing when the NRA did not take to the ramparts to defend free speech.

Perhaps the exemption was intended first to discourage NRA members, who will now be less likely to contribute and go door-to-door in the fall campaigns. Even if the DISCLOSE Act dies in the Senate, sponsors have already achieved a disheartened NRA membership. Success!

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.

Update (12:37 p.m.): House passed rule for H.R. 5175, 220-205. Debate now beginning on DISCLOSE Act.
________
The House has finished debating the rule to set the terms of the one-hour debate on H.R. 5175 and is now voting on several procedural votes. The first is on ordering the previous question, that is, whether to move forward to the further votes. Republicans want to defeat the previous question so they can add legislative language blocking the spending of funds on the IRS hiring of agents to enforce the individual health care mandate.

That debate has merits, but it did inject an partisan-appearing element into what could have been a clear debate of principle, e.g., the First Amendment, against politics, that is legislation crafted to disadvantage speech and speakers whom the bill’s sponsors want to silence. Now it looks like partisanship v. partisanship.

To summarize the arguments for the bill: Corporations buying elections, drowning out the “ordinary citizens.” BP is bad. Insurance companies are bad. Wall Street, tobacco companies, they’re bad, too. The public supports the DISCLOSE Act. And did I mention that BP is bad?

Rep. Dan Lungren (R-CA) was particularly strong in his rebuttals and defense of the First Amendment. We appreciated his debunking the “Americans support the DISCLOSE Act” canard, noting — as we did yesterday – that the polling supporters are waving about was conducted in February and March, long before the DISCLOSE Act was written. In fact, the text of the bill the House is voting on today wasn’t made available until yesterday afternoon.

Just now, the House ordered the previous question: 243-181. They’re now voting on adoption of the rule.

We’ve been Tweeting the debate @Shopfloor_NAM, using the hashtag term, #DISCLOSE.

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.