Former FEC Chair Explains Why the Disclose Act Bans Speech

Bradley A. Smith explains that the Disclose Act bans speech which was legal even before the Supreme Court ruling striking down restrictions.
“You’d think that reducing corporate and even foreign influence over our elections would not be a partisan issue,” Obama said. “[But] the Republican leadership in the Senate is once again using every tactic and every maneuver they can to prevent the DISCLOSE Act from even coming up for an up or down vote.” That’s false. The Supreme Court decision did not allow foreign corporations or governments to spend money to influence U.S. elections. That’s long been prohibited. The decision does allow U.S. companies with international shareholders to spend money on politics. The First Amendment rights of American shareholders should not be stripped away because of a minimal, non-controlling amount of foreign investors. President Obama continued spinning, claiming that the bill is simply about disclosure. “Nobody is saying you can’t run the ads—just make sure that people know who in fact is behind financing these ads,” he said. Actually, Democrats are saying you can’t run the ads: if you’re a company with a government contract of over $10 million (like more than half of the top 50 U.S. companies) or if you’re a company with more than 20 percent foreign shareholders, you can’t even mention a candidate in an ad for up to a full year before the election. What’s remarkable is that these provisions would prohibit speech that was legal even before the Supreme Court decision. There are no similar prohibitions for unions representing government contractors or unions with foreign membership. In a Monday conference call with reporters, Sen. Chuck Schumer (D-N.Y.), the Senate sponsor of the DISCLOSE Act, claimed that it was “completely balanced” and “treats unions and corporations the same.” Schumer was addressing an exemption he removed from the House bill which exempted large financial transfers among union affiliates. Nonetheless, three provisions remain that advantage Democrats’ union allies while restricting business groups: a threshold of disclosure that effectively exempts unions while ensnaring business groups and the aforementioned restrictions on businesses with government contracts and international investment. Schumer simply removed one of many special deals for unions that was inserted the day before the House vote. This cosmetic change to the DISCLOSE Act does not change the fact that it plays favorites with First Amendment rights and rewrites campaign finance law to advantage the majority party mere months before the midterm elections. In one of the most egregious aspects of the bill, House Democrats inserted a provision to exempt large, established interest groups such as the National Rifle Association and the Sierra Club from the bill’s disclosure provision. This would set up a two-tiered system of First Amendment rights: one standard for the most powerful lobbying organizations and a tougher standard for most other grassroots groups. Read more at the Washington Examiner:

25 thoughts on “Former FEC Chair Explains Why the Disclose Act Bans Speech”

  1. The way the bill was written in the first place seems like a fair deal . The provisions definitely give an advantage to the Democrats . This is what happens when the Democrats control congress, and this will still be the case in the future if we don’t elect more Republicans.
    It is imperative that we put forth Republican candidates that can win, even if you don’t agree with all the candidate stands for. We need to compromise, or we will keep ending up with more Democrats in charge. People say that winning isn’t everything, but in our current situation it is.

  2. Repectfully, on this one we disagree. It was a horrible bill in the first place almost banning some speech 120 days before and election and placing onerous requirements on others. The Democrat amendments actually improved it a little bit for some people.

    They are trying to tilt the field, but by exempting older grassroots organization like the NRA, it actually helps us a little. Sure Serria Club gets its exemption, but so does Right to life. NAACP does and so does Right to Work. That part is better. It still attacks the Tea Parties. Congressman Castle believed it was better to attack everyone so it was fair. I believe it is better to attack no one so it is free.

    The point is there should be no gag orders any days before an election. An ad should not spend up to a third of its time on legalese and disclosure elements. It will stiffle discourse to the point of making it less effective. This is not a tag on the screen. The original bill was an abomination. The bill today is still one.

    We do not need people who undermine the heart of our free republic in office whether D or R. That is just my opinion. I may have to vote for him in November because Mr. Coons is worse if the primary doesn’t remedy that problem, but it will be a strategic vote for the party.

    This bill is so bad that you may have noticed a shift in my feeling. I can not explain this one away. It is a trifecta. Tax money for embryo destruction, assualt on speech, and cap and tax. How bad is the bill? You have Democrats opposing it, but you have no Republicans suppporting it save our hero. Even Olympia Snowe and John McCain think it is fatally flawed. They favored Campaign finance deform. That tells you something. It is not just constitutionalist like David Anderson.

  3. So which foreign investors would you like your Republican candidates to be receiving support from?

    Is there any country you wont accept support from, or is it all good?

  4. This law is a feeble attempt to circumvent the recent Citizens United Supreme Court decision. BO and the Socialist-Democrat leadership figures that this bill will tie-up corporate donations at least through the ’10 elections.

    I suggest that, if passed, this law be challenged in the Southeast; SC or Virginia- there’s a decent chance of getting an injunction, either at the USDC level, or in the 4th Circuit. In other words, play the same game the Socialist-Democrats did in AZ.

    Ulitmately, this law would be shot-down in the US Supreme Court- of course, the Dems already know this.

  5. Please continue this debate, and loudly. I want every voter to hear how conservatives think that corporations should have the same rights as citizens.

  6. I don’t know David I kind of like the idea of restricting foreign interests from fishing for gov. contracts through our election process. People already know that hot button issue organizations like the NRA, NAACP, and Right to Life exist to influence elections so it really doesn’t affect them.
    Maybe I don’t understand the implications fully .

  7. Foreign corporations are already banned. International corporations have investors from all over the world. An inconsequential investment should not keep them from speaking out on an issue that could put them out of business.

    This bill does not just affect businesses. It affects small groups, vet organizations, grassroots organizations, chambers of commerces, and other groups. When you think corporation, you think IBM, it as this is construed could stop the heart association from educating people about changes in the school lunch bill in an election year. It goes beyond election advocacy.

  8. FightingBlueHen wrote,

    “It is imperative that we put forth Republican candidates that can win, even if you don’t agree with all the candidate stands for. We need to compromise, or we will keep ending up with more Democrats in charge. People say that winning isn’t everything, but in our current situation it is.

    I know the definition of pragmatic, but really! Is anybody satisfied with this “lesser of two evils” stuff. I’m not. Republican/Democrat. Two sides of the same coin. I’m not one of those who claims there is no difference in ideology between the two parties. Democrats are selling an economically bankrupt ideology. Republicans at least claim to honor the memory of Ronald Reagan. Truth is though, both parties belong to their own special interests. In many cases it’s the same special interests who simply shift their donation focus to the party in power. The only practical difference between the two parties is whether they’re taking your money with their right hand or their left hand and giving it to their real “constituents” TARP was the last straw for me. I left the party of Lincoln and Reagan, and joined the Party of Principle. It’s time to do something different. It’s time to vote Libertarian. To quote Anthony DiNozzo, “If you always do what you’ve always done, you’ll always get what you’ve always got.” Or to choose a more eloquent iteration of a similar idea, how about John Quincy Adams? “Always vote for principle, though you may vote alone, and you may cherish the sweetest reflection that your vote is never lost.” OK, I’m done with my rant. I now gird myself for the inevitable onslaught from those of you who, with perhaps some justification, value pragmatism above principle.

  9. Jess Mcvay – I would definitely vote fore Ron Paul, but if I new that vote meant a Democrat, let’s say Hillary Clinton for the sake of argument, was going to be the benefactor of that vote, I may think twice.

  10. ..corporations should have the same rights as citizens.

    Corporations are citizens.

    Should (P)MSNBC be enjoined from political comment? After all, they’re owned by General Electric.

  11. David – I see your point about the timing of the bill. I personally could be happy without it ,but we can’t beat Castle up for it too much.

    Here is his explanation –

    “Political advertisements attempt to influence voters and Americans deserve to know who is paying for those ads,” said Rep Castle. “The DISCLOSE Act requires that this information be made public, just as candidates are required to take responsibility for a campaign advertisement. Most opponents of the bill would prefer that the legislation protect those groups that are likely to favor and support them during election season. I believe that all groups should be treated equally under the new disclosure requirements and I voted against the effort to carve out certain large, non-profit organizations from the bill. As the bill moves through the Senate, I would like to see a clean bill which applies equally to all corporations, organizations and unions, in order to put voter’s interests ahead of political favoritism.” –

    Castle may be a little more liberal than we like, but he always looks out for his state. Just look at his record as governor.
    Delaware is apparently a liberal state, so we have to take what we can get, and if that means your typical northeastern style Republican candidate, so be it.

  12. I might add, Amendment I;

    Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech….

    If a corporation runs a political ad, that is ‘speech.’ The First Amendment doesn’t say anything about citizens’ speech or a company’s speech or a church’s speech. It says Congress shall make no law…abridging the freedom of speech…

    ‘Freedom of speech.’ Period.

  13. Dear FightingBlueHen:

    I don’t wish to appear to be picking on you specifically, but I must challenge your statement,

    “I personally could be happy without it ,but we can’t beat Castle up for it too much. Here is his explanation -…”

    It is obvious to me that you see the world from one paradigm, and I see it from another. You seem to believe that our politicians are imperfect, maybe clumsy, occasionally even inept, but they mean well and are just doing their best to serve us. Some of us have moved on to a darker realization. Most politicians from the major parties are not the benign ‘Mr Smith Goes to Washington’ types as they would like us to believe. They are servants of powerful masters. And I’m not referring to “We the People”. Many of them are part of an insulated kleptocracy who will bribe you with your own money and then ask for your vote as a measure of gratitude for their largesse. Others will try to slowly chip away at your rights and explain it as “disclosure”. Classic case of someone peeing on your shoes and telling you it’s raining. You refer to Mr Castle’s explanation as though what he says holds the key to the truth. We need to always be vigilant and skeptical of any explanation a politician offers. It’s too often just an attempt to obfuscate the truth. Sadly, the Watergate adage has become the ultimate truth for our time. “Follow the money.”

  14. Once again the perfect becomes the enemy of the necessary. Keep on chopping down anything meant to help. Wait until the day $100 million 24/7 ads are running saying the Tea Party is controlled by the Klan, and you can’t even find out who is paying for the ads. All we are saying is show who is running the ads. Guess what the unions or whoever get to escape this will be in exactly the same position the are now without this requirement. Why not a least get something going here so we know who pays for what political ads. Would you like to know if Citco Chavez is running a nationwide TV campaign backing amnesty for illegals.

    Being against this small step forward just because you found some loopholes and just because it’s from Obama is stupid. Maybe BP will start a campaign about why they should not pay and call themselves US Citizens For Happy and you will be clueless. This is real real important. But you want to wait until you see something perfect? Goofballs.

  15. And Mike Castle thanked the Delaware GOP for its endorsement by…what? Being only one of two Republicans in the House to vote for this thing?

    David….you say you’ll STILL give Castle your vote for fear of Coons (who AIN’T going to win no matter who the pubs put up). Someday you too will reach your point…the point where the alternative is worse than the reality.

    To those defending Castle….are you telling me that HE’S THE ONLIEST REPUBLICAN IN THE HOUSE (besides the Vietnam guy who knows nothing) WITH ANY BRAINS?

    He pees upon your feet, smiles sweetly, and tells you softly not to worry, it’s just raining.

    He embarrassed the hell out of the Delaware GOP. I don’t know how y’all can sleep at night.

  16. Like I said. We need to take care of our family business in the primary. Then we have a choice in November.

  17. Rick,

    Precisely my point. Corporations are NOT citizens, despite the Supreme Court’s shithatted ruling back in the 1800s. They have no rights. They are artificial constructs.

  18. Wait until the day $100 million 24/7 ads are running saying the Tea Party is controlled by the Klan, and you can’t even find out who is paying for the ads.

    We are, essentially, already there. Many ‘advertisers’ are vague and seemingly innocuous sounding special-interest organizations. Many- no, most- will be fooled. People like us can figure it out, but we’re in the minority. It’s part of the ‘too much imformation’ phenomenon.

    Precisely my point. Corporations are NOT citizens..

    Anon, the First Amendment doesn’t say anything about ‘citizens’…or churches, or schools or businesses;

    “Congress shall make no law…abridging the freedom of speech…”

    I understand the prohibition against yelling ‘fire’ in a theater.

    I also understand the Dems attempt to restrict contrary opinions.

  19. Naturally, the theater is not a federal jurisdiction. You see Congress does not need to make laws regarding issues like that one because that falls under state, territorial, and local governments. The states have prohibitions against depriving us of our life, liberty, and property but the standard is different because the states have police powers. The federal government does not.

    Make no law means just that.

  20. ‘Shouting ‘fire’ in a crowded theater….’

    I was referring to Olivier Wendell Holmes’ opinion in the Supreme Court case Schenck v. U.S. (1919);

    “The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing panic….[t]he question in every case is whether the words used are used in such circumstances and are of such nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent.”

    I thought most people were familiar with that (mis)quote.

Comments are closed.