Republicans and Democrats are feverishly positioning themselves to save or take seats in November's mid-term elections. While both sides can display rather elastic ethical boundaries, the DISCLOSE Act ranks as one of the most blatant attempts to curb free speech and sway elections in our country's 234 year history.
The "Democracy is Strengthened by Casting Light on Spending in Elections Act" sounds as wholesome as Wilford Bromley on horseback. Introduced by Sen. Chuck Schumer (D-NY) and Rep. Chris Van Hollen (D-MD), DISCLOSE was Congress' response to the "Citizen's United v. FEC" ruling by the Supreme Court earlier this year in which the judges overturned spending limits by corporations and unions. Pres. Obama accused the judges of opening "the floodgates for" foreign spending in our elections and challenged Congress to fix it. In fact, the President was mistaken. The Supremes pointedly emphasized the exclusion of foreign money in their final ruling.
Undeterred, Congress galloped ahead with the unwholesome, DISCLOSE Act. The bill sets strict requirements and limits on campaign speech and advertising, accompanied by fines or imprisonment for violations. But only for select groups.
A US company with 20% foreign board members would be forbidden to campaign, but their foreign influenced unions would not. While government contractors doing over $10 million in business are subject to DISCLOSE, public employee unions, government grant recipients and even the union members of the covered organizations are exempt. TARP recipients who haven't fully repaid their loans are covered, their unions are not. Have you noticed a pattern? The liberal AARP is exempt while the conservative 60Plus is subject. In a flurry of backroom deals reminiscent of healthcare, special carve outs were provided for influential groups like the NRA, SEIU, Big Labor and the Sierra Club.
Casting light seems to be the last thought brightening the author's minds. According to Sen. Mitch McConnell (R-KY,) a 45 page amendment was crafted behind closed doors treating transfers between affiliated entities that were attributable to dues of less than $600, as exempt from the bill. The average union dues are $377, far below the threshold. Put simply, unions would be able to shift unlimited amounts of campaign money around through various affiliated, national and foreign entities, and never have to report a single dime. 'Affiliate' means any two organizations connected to a common group. The bill creates a financial shell game with endless worldwide possibilities.
For the unfortunate outsiders, the rules and penalties are severe. CEO's with no foreign interests must still certify their eligibility to advertise under penalty of perjury. Onerous advertising regulations demand that the names, titles and towns of the five top contributors be identified in ads (remember the Connecticut protestors at the homes of AIG executives?) so many times that a 30 second spot would require 15 seconds of disclosure. DISCLOSE either deters, if not prohibits, campaign speech.
Businesses are not the only shut-outs with DISCLOSE. Government watchdogs, spontaneous grassroots organizations and even politically inclined bloggers could find themselves facing a nasty subpoena. While Internet communications are generally exempted from areas regarding 'general public political advertising,' news stories, commentaries and editorials do not fall under this category. According to the Republican Study Committee, "since the coordinated communications exception does not mention the Internet, it could open up bloggers who refer to a clearly identified federal candidate during a certain timeframe from coming under the coordinated communication definition—and thus under onerous federal regulations and prohibitions."
The shut-outs should be prepared for a long silence. Under section 324, in a presidential election, the rules apply beginning 120 days prior to the first primary up until election day. In mid-term elections DISCLOSE begins 90 days prior to the election.
The authors just might have suspected the bill will not withstand a constitutional challenge. Virtually all substantive changes to Federal Election law are accompanied by expedited judicial review. The McCain-Feingold campaign finance reform bill allowed challenges to the law to quickly move to a three-judge panel in the US District Court for the District of Columbia. No such expedited provision exists in DISCLOSE. Rep. Dan Lungren (R-CA) introduced a motion to include such language, but it was voted down 217 - 208. Section 401 of DISCLOSE assures any constitutional challenge will be delayed until after the 2010 election.
As Joan Aikens, former FEC Commissioner said of DISCLOSE, "in Citizen's United v. FEC, the Supreme Court overturned spending limits by both corporations and unions, DISCLOSE seeks to re-impose them only on corporations."
If DISCLOSE were applied equally to all parties, it would be excessive, but fair. By design, this bill is not about transparency. It chokes off most conservative and Republican funding sources, while removing most obstacles from unions and liberal sources. Rather than level the playing field, DISCLOSE is a corrupt attempt to thwart voters and level the opposition.
DISCLOSE has passed in the house with 217 Democrats and 2 Republicans in favor. It is already on the Senate calendar.
For a complete analysis of DISCLOSE go to: