The intent behind the DISCLOSE Act is to stifle speech, but its unintended consequence has been to reveal that its supporters operate in a political universe where the concept of irony has not yet been discovered.

 

We’ve already pointed out that Senators Chuck Schumer, Russ Feingold, and Patrick Leahy have a website in which they allow people to show their support for the DISCLOSE Act while remaining anonymous. Our friends at the Center for Competitive Politics have discovered more such irony. Click here to read all about it.

Advocates of campaign finance “reform” often claim that the laws they promote will “protect” democracy.  But, in reality,   the opposite is true:  rather than fostering the political debate that is essential to the democratic process, the increasingly bewildering thickets of campaign finance regulations set endless traps for ordinary citizens and make retaining high-priced lawyers a necessity to participate in the political process.  Even with an army of specialized lawyers, however, navigating   the campaign finance jungle is far from easy.  Just ask Vice President Biden.

 

Senator Charles Schumer, Democratic Chairman of the Senate Rules Committee, introduced S.3628, a new version of the DISCLOSE Act, in the United States Senate yesterday evening.  Early reports indicate that Schumer will be short-circuiting the committee process, which severely decreases the opportunity for debate and amendment on the 116-page bill.  Our friends at CCP, who have closely followed the progress of the DISCLOSE Act, say the word on the Hill is that Senator Schumer is attempting to get the new bill to the Senate floor for a vote on Friday.  Stay tuned for further analysis of this bill.

The Center for Competitive Politics notes that very little has changed in the new version of the bill introduced by Senator Schumer.  Despite the removal of one special exemption for labor unions, the bill still "radically tilts the political playing field in favor of organized labor."

 

The bill is still an attempt to stifle political speech that Congress doesn’t like. And it’s worth noting that the infamous NRA carve-out remains. The Hill reports that a vote on the legislation could come as early as Tuesday.

 

If ever there were a time for a filibuster, this is it.

In the next landmark case challenging campaign finance restrictions after the historic Citizens United decision, the Institute for Justice and the Center for Competitive Politics today filed a petition (.pdf) with the U.S. Supreme Court, asking it to review a case challenging federal laws that impose enormous burdens on grassroots groups that simply want to speak out in elections.  The case is SpeechNow.org v. FEC.

 

SpeechNow.org is a group of citizens who want to defend free speech at the ballot box by running ads that oppose candidates who do not support First Amendment rights. But under federal law, if the group decides to spend most of its funds on ads that call for the election or defeat of political candidates, it must register with the government as a political committee or “PAC” and be subjected to a host of burdensome regulations before speaking.

 

Earlier this year the Supreme Court ruled in Citizens United v. FEC (.pdf) that the same regulations that apply to SpeechNow.org are too burdensome for corporations to comply with.  As Justice Anthony Kennedy put it, “PACs are burdensome alternatives; they are expensive to administer and subject to extensive regulations.” The Court went on to hold that requiring a group to speak through a PAC amounts to an unconstitutional “ban on speech.”

 

Unfortunately, despite the Supreme Court’s ruling, the D.C. Circuit Court of Appeals held (.pdf) that the government could force SpeechNow.org, an unincorporated nonprofit association, to comply with these burdensome regulations just to speak.  IJ and CCP are asking the Supreme Court to reverse that portion of the D.C. Circuit’s ruling.

 

The Supreme Court’s decision in Citizens United was crystal clear:  “If the First Amendment has any force, it prohibits Congress from fining or jailing citizens or associations of citizens, for simply engaging in political speech.”  Large corporations and unions can now spend as much as they want on political speech.  The First Amendment requires nothing less.  But it also requires that groups of ordinary citizens like SpeechNow.org have that same freedom.

Last month, the U.S. Supreme Court ruled in Doe v. Reed that people who sign a petition seeking to place a ballot measure before the voters do not have a general right to anonymity under the First Amendment.  The case concerned signers to a referendum— Referendum 71, to overturn Washington’s domestic partnership law.  The Supreme Court accepted the arguments from the State and supporters of the law that the names of the petition signers should be released in order to, among other things, “combat[] fraud, detect[] invalid signatures, and foster[] government transparency and accountability.”  The Court remanded the case to the U.S. District Court in Tacoma to consider the plaintiffs’ specific argument that identifying the signers publicly would facilitate the harassment of these individuals by supporters of the domestic partnership law.

 

The Everett Herald reports that Referendum 71’s proponents have now filed a motion in district court on remand seeking to keep the names of the signatories from being released.  The fact that this case is still going on is interesting.  Referendum 71 lost badly at the polls.  The continued pressure for the public disclosure of petition signers—despite the fact that the referendum is deader than Francisco Franco—indicates there may be other motives besides “transparency” behind the effort to release these names.  The fact that the effort continues also suggests that the Court should have taken more seriously the argument that the release of these names by the government facilitates harassment and coercion by political and ideological operatives.

 

We will continue to update our readers on this case as it progresses through the courts.

The debate on the DISCLOSE Act is coming to a head today. 

 

Our friends at the Center for Competitive Politics reported that the Senate will vote today on whether to cut off debate on the Act.  It appears that the Senate leadership doesn’t have the sixty votes it needs to end the Republican filibuster of the bill, but has decided to move forward anyway in the hopes of scoring political points ahead of the mid-term elections.

 

The DISCLOSE Act’s sponsors and supporters weren’t exactly subtle in their attempt to portray the bill as merely promoting openness and transparency.  After all, they named the thing the “Democracy is Strengthened by Casting Light on Spending in Elections” Act.  But despite these efforts, it’s been clear from the start that the Act’s purpose was to silence disfavored speakers.  As we have noted before, Senator Charles Schumer has said that the Act’s “deterrent effect should not be underestimated.”  Representative Hank Johnson (D-GA) told his fellow House Democrats that they should vote for the Act because, otherwise, “we will see more Republicans getting elected.”  And, just yesterday, President Obama said that passing the DISCLOSE Act would help “reduc[e] corporate and even foreign influence over our elections. . . .”

 

The Supreme Court in Citizens United struck down the ban on corporate independent advocacy because it acted “to silence entities whose voices the Government deems to be suspect.”  The DISCLOSE Act tries to silence those suspect voices once more.  But the First Amendment doesn’t let the government play favorites with freedom of speech.  Here’s to hoping that the Senate has taken that lesson to heart.

Earlier today, the U.S. Senate voted 57 to 41 on a procedural motion to end debate on the DISCLOSE Act.  Because such motions must get 60 votes in order to pass, the DISCLOSE Act is likely dead for the time being. 

 

But the drum of censorship continues to beat on.  The Hill reports that Charles Schumer, the Senator who was the chief sponsor for the Act, has vowed that the Senate “will go back at this bill again and again and again until we pass it.”  Like a creature from a horror movie, expect to see the zombie DISCLOSE Act come back to haunt us again sometime this fall.

 

Image Source: itspaulkelly

After the Supreme Court upheld the right of corporations and unions to engage in political speech in Citizens United, many pundits darkly warned that corporations could now “buy” elections.  These pundits necessarily relied on two assumptions: (1) voters are dolts whose votes can be “purchased” through advertising, without voters making any independent analysis of their own; and (2) corporations will not suffer economically through backing certain candidates.

 

For assumption (1) I refer our readers to Paul Sherman’s terrific post on this blog of earlier this month.  As for assumption (2), check out this story on Target Corporation’s foray into the Minnesota gubernatorial race:

 

Target earlier this month donated $150,000 to MN Forward, a pro-business group backing Rep. Tom Emmer, the conservative Republican-endorsed gubernatorial candidate.

 

That led to a week of bruising reaction from Target employees and gay-rights activists that included a nationwide e-mail campaign and petition claiming 15,000 signatures.

 

Target claims the donation was made because the company supports Emmer’s fiscal policies, not his social policies which are viewed by some as anti-gay-rights.  It also adamantly contends it remains “unwavering” in its support for the GLBT community through policies such as extending benefits to domestic partners.  Even so, that has not saved Target from controversy, as many of its gay and lesbian employees, not to mention customers, are incensed by the support for Emmer.

 

Whether this outrage is justified or not, it is evidence that corporations wade into candidate races at their peril.  The fact that this is even a story demonstrates that for-profit corporations are very careful, and hesitant, in picking sides in candidate races.  What do corporations value more, customers or candidates?  If they pick any candidate, they are going to anger many loyal customers, even if the reason they pick that candidate has nothing to do with why the customers are angry.

CQ reports that more groups are taking advantage of the recent decisions in Citizens United and SpeechNow.org to set up independent speech groups for the upcoming elections. 

In an emergency appeal, the U.S. Court of Appeals for the Eleventh Circuit has enjoined Florida’s unconstitutional system of campaign finance “matching funds.”  The ruling (.pdf) reverses a contrary decision—handed down only two weeks ago—by U.S. District Judge Robert Hinkle.

 

As we have previously described on this blog, matching-funds programs unconstitutionally discourage privately funded candidates from speaking because, if those candidates spend more than a certain amount on political speech, the government starts cutting checks directly to their government-financed opponents.  IJ will soon be appealing a similar challenge to Arizona’s matching-funds program to the U.S. Supreme Court.

 

More analysis of the 11th Circuit's ruling to follow.

 

UPDATE:

How likely is it that matching-funds programs like those in Florida, Arizona and Connecticut violate the First Amendment?  Accordingly to the 11th Circuit, “exceedingly likely.”

 

In its ruling enjoining Florida’s matching-funds program, the 11th Circuit panel treats the legal issue in gubernatorial candidate Rick Scott’s challenge to Florida’s law as an easy question that is entirely resolved by the Supreme Court’s 2008 ruling in Davis v. FEC.  And the 11th Circuit is absolutely right.