The DISCLOSE Act Creeps Along

Sometime before the end of the world (which is to say any day now) it’s going to occur to our congressional leaders that the United States is facing some actual problems that might usefully be addressed.  In the meantime, though, the expectation is that they’ll just keep lobbing into the hopper things like the DISCLOSE Act.

As mentioned in an earlier blog, the legislation is formally titled the “Democracy Is Strengthened by Casting Light on Spending in Elections” Act.  And right there you have a measure of the collective wit of the bill’s sponsors.

Having cleared the House last month, the legislation is now in the Senate where its fate is unclear.  There’s talk of a Republican filibuster and of Democratic weariness.  But never mind the horse race aspects; we can trust our political reporters to handle that.  Of much greater importance are the myriad things that are wrong with the bill, divisible in parts between those that are just routinely outrageous, and those that are uncommonly so.

Among the former are the carve-outs exempting special interest groups like AARP and the NRA, and the transparently political rush to pass the legislation before the fall elections.  But the worst aspects of the bill are those that are also the most constitutionally infirm.

The bans on direct expenditures by government contractors and TARP recipients (with no similar limitations put on unions), and the speech-chilling threat of harassment inherent in some of the disclaimer and disclosure obligations, are sure to be challenged in court if the DISCLOSE Act is passed and signed into law.

It’s rarely a prudent thing to predict the outcome of any matter before the Supreme Court.  But considering what appears to be the support there for the notion that the speech at issue enjoys constitutional protection, it’s hard to see the Court upholding a bill that, for instance, restricts the First Amendment rights of organizations just because they happen to be government contractors.

In the main, The Media Institute’s opposition to McCain-Feingold has focused more on that legislation’s impact on “issue ads” rather than direct political contributions.  But given the mischief, not only inherent in but positively intended by the bill’s sponsors, the hope here is that, whether by filibuster or force majeure, the DISCLOSE Act will be put to rest in the Senate.

As they say in the ad, “Just Do It.”

Congressional (Mal)intent

Einstein’s Special Theory of Relativity postulates that it’s impossible for anything to go faster than the speed of light. More impossible still is the ability of Congress to honorably handle First Amendment issues.

The latest example of this dolorous state of affairs can be seen in the so-called DISCLOSE Act. Aimed at curbing what its Democratic sponsors claim are flaws in the Supreme Court’s campaign finance decision (Citizens United vs. FEC), the formal name of this legislation is the “Democracy Is Strengthened by Casting Light On Spending in Elections Act.” Seriously.

Not to put too fine a point on it, the difference between this Act’s intended impact and its stated goal is the difference between flapjacks and flapdoodle. In fact, the difference may be even greater than that. The Act is so dense and lengthy, who knows what’s in there? Could be anything. The only people who are going to know for sure are those communications lawyers who find gaping holes and contradictions in it–and don’t think for a second they won’t.

With this kind of opacity we can’t yet identify all of the Act’s “microflaws,” but its “macroflaws” are easily spotted: It burdens political speech in ways that are intended to discourage it, and it provides for the care and feeding of incumbents at the expense of challengers and the public at large.

We know the true intent of this legislation is to stifle political speech because the sponsor of the Senate bill, Charles Schumer, has admitted as much. As reported in Politico, though the legislation is “billed primarily as an effort to enable voters to determine who is behind ads attacking or supporting candidates, Senator Schumer…acknowledged that part of his goal is to limit the campaign spending newly legalized by the high court.”

“My view,” he said, “is that many CEOs of major organizations will air ads if they don’t have to disclose, but once they have to come up front and disclose, they will not do it…Anyone who wants to hide, will not do an ad after this legislation passes. And I think there are a lot of people who like to hide…so I think there will be many fewer of them.”

Apart from the DISCLOSE Act’s transparently fraudulent claim to a kind of “good government” motivation, the Act burdens business and nonprofit political speech by requiring so many on-air disclosures there would be little time left for a message of any kind, and by requiring CEOs of the sponsoring organizations and their major donors to do a kind of “I stand by this message” statement in the ad itself. The problem with this latter aspect is that this statement threatens to subject all such to retaliation and harassment by candidates, parties, and interest groups who disagree with whatever the message might be.

Another malevolent aspect of the Act, as analyzed by the Center for Competitive Politics (CCP), is that the legislation “would prohibit government contractors and U.S. subsidiaries of foreign companies from engaging in independent political expenditures.” This, from a group of politicians who, until the recent unpleasantness, were among the most fervent supporters of Acorn, an organization that attempted, in the name of “political inclusion,” to register the quick, the dead, and the never were.

A third macroflaw, and the one that shines a bright light on the sponsors’ true motives, is the provision that provides “candidates and parties the lowest advertising rate whenever an independent group airs ads in a given media market.” As the CCP observes, “This is a nakedly self-dealing attempt to punish independent groups for speaking out against Members of Congress.”

In a recent note, attorney Jan Baran, the esteemed election law expert at Wiley Rein, summarized this aspect of the DISCLOSE Act as follows: “The lowest unit rate provision manifests the politicians’ twofold strategy, which is as follows: first, do everything you can to burden and discourage public commentary about them; and if that doesn’t stop the speakers then give the political parties (which the politicians control) cheap TV and radio time at the expense of the broadcasters.”

“As you know,” he said, “the history of ‘reform’ is the history of politicians seeking to control political debate.”

The particulars of this legislation to one side, there is another woeful aspect of the campaign to reverse the Supreme Court’s Citizens United decision, and that is the lack of integrity in the debate.

One of the (very few) advantages in growing old is that you get to personally observe a bit of the sweep of history. In my case that history goes back to the Warren Court, and to the frequent conservative criticisms of that Court’s decisions.

Back in those days such criticism was said, by all the right people, to be an attack on the Constitution itself. But fast forward to the present time and what do we find? The New York Times publishing an editorial, in the wake of Citizens United, titled “The Court’s Blow to Democracy;” the president excoriating those Supreme Court justices who were in attendance at a State of the Union address; and the Senate sponsors of the DISCLOSE Act announcing their legislation on the front steps of the Supreme Court, ironically enough in the same week that the Court announced, for security reasons, that the front entrance will no longer be available to the public.

Time will tell whether any or all of the Act’s provisions, if enacted, will survive judicial scrutiny, but in the meantime, and in the interest of “truth in labeling,” the Act should be formally renamed. A more accurate title would be the Hyper-Partisan Old Claptrap Reveling In Temerity Act.

The acronym? You figure it out.

First posted on Broadcasting & Cable, May 6, 2010