- DISCLOSE Act
-
The Democracy Is Strengthened by Casting Light On Spending in Elections Act, commonly known as the DISCLOSE Act and also known as H.R. 5175 (S.3628-Senate), was a bill introduced in the U.S. House of Representatives by Chris Van Hollen (D-Maryland) on April 29, 2010 and in the U.S. Senate by Charles Schumer (D-New York) on July 21, 2010.
To amend the Federal Election Campaign Act of 1971 to prohibit foreign influence in Federal elections, to prohibit government contractors from making expenditures with respect to such elections, and to establish additional disclosure requirements with respect to spending in such elections, and for other purposes.
Contents
Background
In response to the Supreme Court’s decision in Citizens United vs. Federal Election Commission, members of both chambers of Congress introduced the Democracy is Strengthened by Casting Light on Special Elections Act of 2010 (DISCLOSE Act).
The bill, as introduced, included banning U.S. corporations controlled by foreign governments from influencing election outcomes through the use of campaign contributions; preventing Troubled Asset Relief Program (TARP) recipients from making political contributions; giving shareholders, organization members, and the general public access to information regarding corporate and interest group campaign expenditures; and creating transparency mechanisms for organizations with more than 500,000 members to stand by political ads.[1]
History
Citizens United v. Federal Election Commission
On January 21, 2010, the Supreme Court, in a 5-4 decision, argued in favor of Citizens United that it was unconstitutional to ban free speech through the limitation of campaign contributions made towards independent communications by corporations, associations and unions.[2]
Response
Following the Court’s ruling, President Barack Obama expressed disapproval in his 2010 State of the Union Address, stating that American elections should not be controlled by America’s most powerful interests. Rather, they should be decided by the American people. He urged Democrats and Republicans to unite behind legislation to correct this problem.[3]
Senators Russ Feingold (D-Wisconsin) and John McCain (R-Arizona), both major supporters of the Bipartisan Campaign Reform Act of 2002, made statements in response to the court’s decision:
Feingold: “Just six years ago, the Court said that the prohibition on corporations and unions dipping into their treasuries to influence campaigns was ‘firmly embedded in our law.’ Yet this Court has just upended that prohibition, and a century's worth of campaign finance law designed to stem corruption in government. The American people will pay dearly for this decision when, more than ever, their voices are drowned out by corporate spending in our federal elections.” [4]
McCain: “I am disappointed by the decision of the Supreme Court and the lifting of the limits on corporate and union contributions. However, it appears that key aspects of the Bipartisan Campaign Reform Act (BCRA), including the ban on soft money contributions, remain intact.”[5]
Legislative action
Representative Chris Van Hollen (D-Maryland) introduced the House version (H.R. 5175)[6] and Senator Charles Schumer (D-New York) introduced the Senate version (S. 3628.[7]
Co-sponsors
House: Representatives Mike Castle (R-Delaware) and Walter Jones, Jr. (R-North Carolina) were the only two Republican co-sponsors of H.R. 5175. There were a total of 114 co-sponsors.[6]
Senate: There are only seven Democratic co-sponsors and no Republican support.[7]
Support/opposition
House of Representatives
In a Washington Post op-ed, Representatives Van Hollen and Castle stated that now is the time for Congress to improve transparency and enforce disclosure on special interests who attempt to influence elections process. They believe that Americans deserve the right to information about special interests and further protecting democracy from outside influence. Further, they argue that opponents cannot argue against the merits of the bi-partisanship.[8]
The Republican Minority Leader, John Boehner (R-Ohio) opposed the legislation from its introduction. He argued that the DISCLOSE act is a direct violation of the First Amendment and believes the bill is a scheme on the part of the majority to silence their opponents and the legislation has fallen victim to backroom deals and special interest exemptions.
“It allows the Humane Society to speak freely, but not the Farm Bureau. It would protect the AARP’s rights, but not 60-Plus. And lastly it would protect the National Rifle Association but not the National Right to Life. The NRA is carved out and gets a special deal in this bill. The NRA is all about protecting the Second Amendment, but apparently its leaders don’t care about protecting the First Amendment. That’s very disappointing.”[9]
Senate
Senator Charles Schumer (D-New York), the lead sponsor of the Senate version of the DISCLOSE Act (s. 3628), claims that in a time when the American people fear the influence of special interests, the legislation will create greater disclosure over the flow of money. He further argued that unless Congress acts quickly, The Supreme Court will have predetermined the outcome of November’s election.[10]
Republican Leader Mitch McConnell (R-Kentucky), a major opponent of the current bill, stated that the majority has drafted a bill behind closed doors without Congressional hearings or markups. He argues that politics is driving the bills introduction and future passage.[11]
Legislative procedure
On June 24, 2010 the House passed H.R. 5175 by a 219-206 vote (Roll call # 391).[12] The Senate attempted to take up the legislation prior to the October recess working period, but failed to reach agreement on the Senate version (S.3628) on September 23, 2010 by a vote of 59-39 (Roll call # 240).[13]
President Obama welcomed passage of the House bill. In his statement, he congratulated the House of Representatives for passing legislation that would create stronger disclosure requirements, restrict funding by organizations with recent government financial assistance, and limit the potential for foreign influence. After the Senate failed to pass legislation prior to October recess, President Obama expressed disappointment, stating that failure is a loss for the American people.[14]
Interest group participation and public reaction
Support
U.S. Public Interest Research Group
The Public Interest Research Group (U.S. PIRG) supported the introduction of the DISCLOSE Act, but withheld its support when special interest exemptions were provided. However, it has continues to maintain its support for future Senate action.[15]
In addition, the U.S. PIRG started the campaign “Stop the Corporate Takeover of Democracy,” which is an on-going effort to educate voters on the negative contributions that corporations and labor unions can have on the election process, through a lack of disclosure and transparency.[16]
AFL-CIO
In a statement by AFL-CIO President Richard Trumka on April 29, 2010, he applauded Congress for introducing legislation that would create transparency and address issues related to campaign finance reform. Trumka stated that the United States needs stronger regulation in place to promote equal participation by individuals and organizations, protects political speech, encourages the use public financing options for political candidates, and promotes disclosure for advertisement contributions.[17]
Other:
The bill was supported by the Democratic Party establishment.[1]
Opposition
U.S. Chamber of Commerce
In a press statement, U.S. Chamber of Commerce President and CEO Thomas Donohue criticized the House Democratic majority for passing legislation that violates the principles of fairness and equality, as prescribed by the Constitution. Further, he argued that the bill’s passage resulted from backroom deals with special interest groups and unions who “mask the movement of political money.” Donohue believes that Congress should focus on the restoring the economy versus protecting their own jobs and called on the Senate to oppose future passage of the legislation.[18]
National Federation of Independent Businesses
On June 22, 2010, the National Federation of Independent Businesses (NFIB) sent a key-vote letter to Members of the House of Representatives on behalf of Senior Vice President Susan Eckerly, opposing House passage of H.R. 5175. In their letter, the NFIB stated that passage would threaten small businesses under the First Amendment and creates an unlevel playing field by providing exemptions for certain special interests.[19]
Other:
The DISCLOSE Act was opposed by the American Civil Liberties Union (ACLU),[20] which claimed that it "would inflict unnecessary damage to free speech rights and does not include the proper safeguards to protect Americans' privacy. The bill would severely impact donor anonymity, especially those donors who give to smaller and more controversial organizations."
Public reaction
Erick Erickson, a conservative blogger for Red State, asserted on May 20, 2010 that the Disclose Act is just another way for Democrats to control another sub-group of Americans, bloggers. He believes the government wants to limit the amount of political participation Americans have by passing the Disclose Act.
“Democrats want to bring bloggers—all bloggers—not just conservative ones—under the control of federal campaign finance regulations.”
Erickson is primarily concerned with specific wording in the Disclose Act relating to communication. In current federal campaign regulations, public communication is defined explicitly to exclude internet communications, which keeps exchanges among citizens on all political blogs from coming under prohibitive campaign speech regulations of the federal government. In the Disclose Act, where the bill addresses what would be covered by a host of the bill's new federal campaign regulations, the term "communication" is used, not "public communication." Erickson says this means internet communications are not protected, which could eventually lead to posts by bloggers being deemed campaign contributions.
However John Brown, a blogger on Geek.com, disagreed on October 6, 2009. He thinks the disclosure rules to be a good thing for the blogosphere. For blogging, it is overdue recognition: blogging has now been officially put on the same level of importance as magazines, television and newspapers as an influence in the buying decisions of the public. By being forced to disclose their relationships with the companies they cover, blogs will be more credible news sources.
In a more moderate stance, another blogger for Red State, GJ Merits, posted on May 20, 2010 that any attempt to control the political speech of bloggers—-liberal or conservative—-or anyone else should be met with resistance. He is concerned the FEC's control will extend to all "covered communications" over broadcast communications, including the blogosphere. He thinks the bill would radically redefine how the FEC regulates political commentary.
On September 23, 2010 conservative pundit Michelle Malkin called “false” on Senator Chuck Schumer's statement, "We do not want to chill free speech." She continues on by stating the irony of Schumer who talks about "transparency" while ignoring all the loopholes carved out for special interests and then proposed changes on the Senate floor to the bill to win over Senator Olympia Snowe, after having drafted the bill behind closed doors with lobbyists.
On the other side of the debate regarding transparency, Janine Wedel and Linda Keenan wrote an article on Huffington Post about the shadow elite and how it brings in an era of deniability because as more and more sources of campaign financing are being permitted to remain ambiguous or even secret, this enables funders to deny any responsibility. The shadow elite wants not just influence butt also what the writers call an influence of impunity.
For example, when a controversial policy decision is made the public would have no idea what questions to ask or even whether to ask questions in the first place. Both the donor and the politician enjoy the benefits of deniability that come with anonymity. Information that used to be public information is now firmly in a few, private hands. The scary result is that the public is now more reliant on the accounts and ethics of the political players themselves.
Jesse Zwick wrote in the Washington Independent explaining why Republicans, who have historically favored transparency initiatives like the Disclose Act, are not agreeing with Democrats on this issue.
According to Zwick, the problems with the bill really started when the House of Representatives added a carveout in the bill for membership groups like the NRA. This move allowed the bill’s opponents to argue that it was the result of a corrupt process and was not a pure transparency initiative, so when it moved to the Senate, moderate Republicans and Democrats were not willing to participate in talks. Had that incentive not occurred, there may not have ever been a debate regarding the Disclose Act.
Another conservative pundit, John Feehery, pointed out on The Hill's Pundits Blog on June 17, 2010 the absurdity of the lengths Democrats will go to win the 2010 midterm elections and elections beyond and not allow people to speak out against the government takeover.
“They are so desperate, they have made a deal with the devil himself, the NRA.”
The National Rifle Association (NRA) is not included as an organization that will have to disclose contributions because the new agreement between Democrats and the NRA exempts organizations that have over one million members, have been in existence for more than 10 years, have members in all 50 states, and raise 15% or less of their funds from corporations, from the disclosure requirements. Many have criticized the criteria as a means of rewriting the Bipartisan Campaign Reform Act in favor of the Democrats, as they exempt virtually all of the major unions from having to disclose contributions while heavily regulating such activity for corporations.
Still, advocates for the Disclose Act do not see it this way. An editorial in the Washington Post claims the current Citizen's United ruling is “unhealthy for democracy. As the Supreme Court itself explained in the portion of its Citizens United ruling rejecting a challenge to existing reporting requirements, the First Amendment protects political speech; and disclosure permits citizens and shareholders to react to the speech of corporate entities in a proper way. This transparency enables the electorate to make informed decisions and give proper weight to different speakers and messages. The current disclosure void threatens that balance, with an electorate clueless about the interests trying to influence their votes.”
In a New York Times article on October 12, 2010, liberal political pundit (and former Clinton campaign manager) James Carville looked at this issue in a different way. He feels Democrats need to reframe the argument slightly by tweaking the foreign money message to focus on jobs.
“Why would the organizations whose agenda is outsourcing put in $75 million into the campaign?”
Carville and Democratic pollster Stanley Greenberg believe President Obama can help win over undecided voters with a promise to change Washington on behalf of the middle class and to oppose Republicans who support tax breaks for big companies that export jobs.
See also
References
- ^ a b http://www.speaker.gov/newsroom/legislation?id=0381
- ^ http://www.oyez.org/cases/2000-2009/2008/2008_08_205
- ^ http://www.whitehouse.gov/the-press-office/remarks-president-state-union-address
- ^ http://feingold.senate.gov/record.cfm?id=321625
- ^ http://mccain.senate.gov/public/index.cfm?FuseAction=PressOffice.PressReleases&ContentRecord_id=011b4f81-ecaa-33b0-dc61-32bd9f81b631&Region_id=&Issue_id=
- ^ a b http://thomas.loc.gov/cgi-bin/bdquery/z?d111:h.r.05175:
- ^ a b http://thomas.loc.gov/cgi-bin/bdquery/z?d111:s.3628:
- ^ http://castle.house.gov/News/DocumentSingle.aspx?DocumentID=193682
- ^ http://www.johnboehner.house.gov/News/DocumentSingle.aspx?DocumentID=192240
- ^ http://schumer.senate.gov/new_website/record.cfm?id=324343&&&search_field=DISCLOSE%20Act
- ^ http://mcconnell.senate.gov/public/index.cfm?p=PressReleases&ContentRecord_id=b61ba319-27aa-4539-a152-f0bc36386f89&ContentType_id=c19bc7a5-2bb9-4a73-b2ab-3c1b5191a72b&Group_id=0fd6ddca-6a05-4b26-8710-a0b7b59a8f1f
- ^ http://clerk.house.gov/evs/2010/roll391.xml
- ^ http://www.senate.gov/legislative/LIS/roll_call_lists/roll_call_vote_cfm.cfm?congress=111&session=2&vote=00240
- ^ http://www.whitehouse.gov/the-press-office/statement-president-passage-disclose-act-house-representatives
- ^ http://www.uspirg.org/newsroom/voting/voting-news/washington-d.c-statement-of-lisa-gilbert-u.s.-pirg-democracy-advocate-on-the-disclose-act#idyR-xjxpR8bq4m6AeHGoyGg
- ^ http://www.uspirg.org/action/democracy/citizens-united
- ^ http://www.aflcio.org/mediacenter/prsptm/pr04292010.cfm
- ^ http://www.uschamber.com/press/releases/2010/june/us-chamber-calls-passage-disclose-act-assault-freedom-speech
- ^ http://www.nfib.com/Portals/0/PDF/AllUsers/Campaign%20Finance%20-%20111th%20-%20Disclose%20Act%20key%20vote%20letter.pdf
- ^ http://www.aclu.org/free-speech/aclu-urges-no-vote-disclose-act
External links
Categories:- United States proposed federal legislation
Wikimedia Foundation. 2010.
