Targeting Free Speech – H.R. 5175, The DISCLOSE Act

by PAT_S on JUNE 15, 2010 · 11 COMMENTS

A post by Pat

The DISCLOSE Act, an acronym for the egregiously misnamed “Democracy Is Strengthened by Casting Light on Spending in Elections Act”, is expected to come to a vote soon in the House. Proponents of the bill want to sell it as correcting the Supreme Court Citizens United decision regarding the First Amendment right of American corporations. President Obama took the unprecedented action of publicly scolding the Supreme Court for this decision during his State of the Union address. He called for legislation to prevent foreign companies from taking advantage of this ruling.

The President’s alarm was itself a red herring as there is already existing law, the Foreign Agents Registration Act of 1996, which prohibits independent political advertising by foreign nationals or foreign companies. The DISCLOSE Act produced by Congress at the behest of the President should more accurately be called the “Shut Uppa You Mouth Act”. It goes far beyond addressing the bogus concern about foreign entities influencing American elections. The bill adds burdensome provisions on reporting and disclosing by domestic entities which will disproportionately affect corporations over unions. For example, corporations holding government contracts are restricted in ways that unions with government contracts are not.

H.R. 5175 requires the head of an organization to appear in the political ad and the top five funders of the organization must be listed in the ad as well as any “significant” funder. The name of the organization must be restated three times; the name of the head of the organization must be restated twice. The requirements are so ridiculously overbearing that there is serious concern more time may have to be spent on all this identifying than on the message itself. Special considerations were added for 30 second spots.

Then there’s this–political parties must be given reduced rate air time to respond to “special interest” ads.

The legislation does not intend to shed sunlight on political spending. The exceptions are carefully considered to favor leftwing organizations. The extensive disclosure requirements will certainly have a chilling effect on the conservative grassroots organizations which have just found their voice.

The NRA recognized the danger to their organization and fought the bill. Within the last few days, wording has been added to the bill that all but mentions the NRA by name as another exception. Will the NRA now drop its objections? UPDATE Yes, they will. (H/T Maynard – see comments)

STATEMENT FROM THE NATIONAL RIFLE ASSOCIATION ON H.R. 5175, THE DISCLOSE ACT

On June 14, 2010, Democratic leadership in the U.S. House of Representatives pledged that H.R. 5175 would be amended to exempt groups like the NRA, that meet certain criteria, from its onerous restrictions on political speech. As a result, and as long as that remains the case, the NRA will not be involved in final consideration of the House bill.

The NRA cannot defend the Second Amendment from the attacks we face in the local, state, federal, international and judicial arenas without the ability to speak. We will not allow ourselves to be silenced while the national news media, politicians and others are allowed to attack us freely.

There are many organizations whose primary political interests are elsewhere but exercise their First Amendment Rights to support the Second Amendment rights of others. It is a sad day for freedom that the NRA allowed itself to be placated by special exemption from this particular bill and abandoned the fight against it. If Congress succeeds in chipping away at First Amendment rights, soon no one will be left to help the NRA defend Second Amendment rights or any of our rights.

The Democrats are in a hurry to pass this bill before the mid-term elections. Since the FCC may take too long to issue regulations stemming from the legislation, a provision has been added—according to Sen. Schumer the sponsor of the Senate version—to make the legislation “self-implementing”. H.R. 5175 has to be stopped.

Bloggers Beware – They’re Coming After You

For many bloggers to exercise their free speech rights, they would have to jump through the same onerous new hoops as many businesses, nonprofit groups, and even such threats to democracy as your local chamber of commerce. If this sounds like an absurd overreach by one party in power, I invite you to take a look at their government takeover of health care, taxpayer-funded bailouts, and general hostility to private sector economic growth.

American Conservative Union Letter to Congress

The disclosure requirements themselves make no sense, as the top donors to any group would be “disclosed,” even if they did not fund the organization’s communications. An even more ridiculous requirement added by Rep. Michael Capuano would force donors names be included in an ad. Since broadcast ads are time limited, this is an obvious attempt to make the ads meaningless by taking up the time with disclaimers.

The fact is, donations to groups for independent expenditures and electioneering communications over $250 are already required to be disclosed through the FEC. This bill is nothing less than an attempt to place a chill on the attempt of groups of all persuasions to participate in the American political system. Please vote “NO” on H.R. 5175, the DISCLOSE Act.

The One-Sided Disclosure Act

The “Democracy Is Strengthened by Casting Light on Spending in Elections Act” (H.R. 5175) was approved in the House Administration Committee on May 20 on a party-line vote. In addition to the fact that it is filled with onerous, burdensome, and unnecessary provisions, it is extremely tilted against corporations in favor of unions. The intentional partisanship and one-sided nature of this was demonstrated by the defeat of a series of amendments in the committee mark-up that were proposed by Republicans. This included an amendment by Rep. Dan Lungren (R., Calif.) that would have extended the prohibition on government contractors to any unions that have representational contracts with the government, as well as an amendment by Rep. Gregg Harper (R., Miss.) that would have extended the same ban to any other recipient of government grants, such as the liberal groups that receive so many federal earmarks and other funds. When Lungren tried to extend the political activity ban on corporations with foreign shareholders or corporate directors to unions that receive dues from foreign nationals, that was also rejected.

U.S. Chamber of Commerce letter to members of Congress

Former FEC Chairs Weigh In Against DISCLOSE ACT

The Administration Committee advertises the bill on its Web site as meant to “restore the importance of the individual American voter in the face of the recent Supreme Court decision in Citizens United vs. the Federal Elections Commission.” The Disclose (Democracy is Strengthened by Casting Light On Spending In Elections) Act (H.R. 5175) would toughen disclosure rules for campaign ads by corporations, unions and advocacy groups.

The bill could also potentially reduce the new flow of campaign dollars to media outlets if those disclosure or other provisions prove a disincentive.

The DISCLOSE Act and the NRA: Some Bad News

Politico and others are reporting that the NRA has reached a deal to withdraw its opposition to the bill in exchange for an exemption for the NRA from its disclosure provisions. The exemption would apply to “organizations which have qualified as having tax exempt status under section 501(c)(4) of the tax code for each of the 10 years prior to making a campaign-related disbursement, that had 1 million or more dues-paying members in the prior calendar year, that had members in each of the 50 states, that received no more than 15 percent of their total funding from corporations or labor organizations, and that do not use any corporate or union money to pay for their campaign-related expenditures.”

There aren’t too many organizations that will fit within this exemption, but I understand the NRA thinks it is one of those that will. This exemption will not apply to small, less powerful 501(c)(4) organizations, which will be hit the hardest by the onerous, burdensome, and expensive disclosure requirements of the DISCLOSE Act, but it will apply to the large, well-funded and well-connected NRA.

H.R. 5175 pdf (The Senate version is S. 3295)