Internet bloggers still not safe under revised DISCLOSE Act

Bill McGinley, who initially brought to light the fact that the DISCLOSE Act would permit the regulation of online political speech such as blogging, has reviewed the newly-unveiled version of the bill. As noted before, the new legislation does attempt to address the issue of regulating political speech on the internet, but it appears that the problem has not been totally fixed. From McGinley’ blog,

The details matter, however, and I believe that the internet is still subject to regulation under the revised version of the legislation.  The DISCLOSE Act is riddled with vague language that could have serious unintended consequences for political bloggers…

Filed Under: Blog, Disclosure, Disclosure Press Release/In the News/Blog, DISCLOSE, Disclose Act

Will the new version of DISCLOSE fix its drafting blunders?

The Committee on House Administration is scheduled to mark-up the ‘DISCLOSE Act’ today at 1 p.m. The Democratic majority plans to introduce a manager’s amendment as a substitute for the legislation, H.R. 5175 (the Senate version is S. 3295).

The Daily Caller reported yesterday that the fixes to the ‘DISCLOSE Act’ will include an update to the language governing Internet political speech. Patton Boggs attorney William McGinley and the Center for Competitive Politics pointed out that the statutory language would have swept the online arena in the FEC’s regulatory reach for the first time.

According to a draft version of the 87-page “Amendment in the Nature of a Substitute to H.R. 5175,” the bill attempts to fix the problem by changing the broad term “communication” to “public communication,” which is the language the FEC used in its regulations exempting Internet political speech from government control.

We’re encouraged that Democrats in Congress recognized their clear drafting error and seem to be taking steps to correct it. This illustrates, though, the folly of drafting a bill in secret without bipartisan negotiation and rushing it through the legislative process in the late stages of an election year.

08-205 Citizens United v. Federal Election Comm’n (01/21/10)

According to a quick analysis by CCP, the new language would (1) change the definitions involving Internet regulation to bring the bill in line with the FEC regulations (although it still doesn’t include the Internet in its media exemption), (2) make clear that the provision banning U.S. subsidiaries with more than 20 percent foreign ownership doesn’t apply to PACs, and (3) provide a “safe harbor” for the coordination regulations to protect “coordination based solely on sharing of information regarding legislative policy position.”

Filed Under: Blog, Disclosure, Disclosure Press Release/In the News/Blog, DISCLOSE, Disclose Act

Former FEC commissioners band together to blast ‘DISCLOSE Act’

Eight former commissioners of the Federal Election Commission submitted comments to the Committee on House Administration Wednesday, sharply criticizing the “DISCLOSE Act” as unnecessary, burdensome, and an enforcement nightmare. The committee is scheduled to mark-up the bill Thursday.

“The FEC now has regulations for 33 types of contributions and speech and 71 different types of speakers,” the commissioners wrote in the Wall Street Journal Wednesday. “Regardless of the abstract merit of the various arguments for and against limits on political contributions and spending, this very complexity raises serious concerns about whether the law can be enforced consistent with the First Amendment.”

Rep. Chris Van Hollen and Sen. Chuck Schumer introduced the “DISCLOSE Act” last month. The duo has dubbed the bill the “Democracy Is Strengthened by Casting Light On Spending in Elections” Act.

“Congressman Van Hollen and Senator Schumer have created a case study in deceptive advertising,” said Thomas J. Josefiak. “The bill is touted as ‘DISCLOSE,’ when, in fact, its purpose is to silence free speech guaranteed by the First Amendment.”

The former FEC commissioners have nearly 75 years of experience in interpreting the Federal Election Campaign Act, implementing campaign finance regulations, devising enforcement policy and investigating violations. They seek to provide Members of Congress a deeper understanding of the complex and difficult issues involved with the practical application of proposed changes to federal campaign finance laws.

“The DISCLOSE Act should really be renamed the New Sedition Act—it is clearly intended to intimidate and deter organizations, including nonprofits, from engaging in any political criticism of incumbents like its main sponsors, Chuck Schumer and Chris Van Hollen,” said Hans A. von Spakovsky.

The eight former FEC commissioners describe how the bill would introduce asymmetrical rules for unions and companies for the first time since the early twentieth century. Unions, for example, would not be subject to the bill’s ban on political spending for government contractors or companies with a small percentage of foreign ownership.

“The ‘DISCLOSE Act’ is a blatant attempt by its sponsors to do indirectly—by overly onerous regulatory requirements—what the Supreme Court has told Congress it cannot do directly-restrict speech by corporations, nonprofits or labor unions,” said Darryl R. Wold.

“This bill has been promoted as ‘mere disclosure,’ but through the expanded definition of electioneering communications combined with the ban on electioneering communications by even the smallest of contractors, it actually prohibits a tremendous amount of political speech that was legal before Citizens United,” said Bradley A. Smith. “Congress can’t respond to a decision striking down speech prohibitions by outlawing still more speech, yet that is what this bill would do.”

Filed Under: Disclosure, Disclosure Press Release/In the News/Blog, External Relations Sub-Pages, Press Releases

Chuck Schumer vs. Free Speech

Filed Under: In the News

A Rorschach test for Kagan’s cloudy views

Today’s bloggers briefing hosted by the Heritage Foundation featured two advocates of conservative legal policy commenting on the credentials of Solicitor General Elena Kagan, who President Barack Obama nominated to the Supreme Court

While the Center for Competitive Politics has not taken a position on whether Kagan should be confirmed as an Associate Justice of the Supreme Court, we’ve been detailing her mysterious record on campaign finance issues, and we’ve advocated for a full examination of her views on First Amendment political rights during the confirmation process.

Filed Under: Blog, Disclosure, Disclosure Press Release/In the News/Blog, DISCLOSE, Disclose Act asks D.C. federal court to implement ruling

In a filing today, asked a D.C. District Court to enter a final judgment in their challenge to contribution limits for independent groups. The group received a unanimous ruling from the D.C. Court of Appeals in March.

SCOTUSblog has the scoop on the most recent development:

An election advocacy group asked a federal judge in Washington on Friday to clear the way for it to go all across the nation to raise unlimited amounts of money to spend to influence congressional elections this year.  The Federal Election Commission has lost its challenge to such fund-raising, and should now be barred from enforcing limits on that activity anywhere in the country, the motion filed by the organization, SpeechNow, argued.  The motion, with a legal memorandum supporting it, can be read here. The case of v. FEC is the most significant sequel to develop so far to the Supreme Court’s campaign finance ruling in January in Citizens United v. FEC.

The government has until late June to decide whether to challenge the appellate court’s ruling with the Supreme Court, but it must respond to this motion in two weeks.

The Institute for Justice and the Center for Competitive Politics filed a First Amendment challenge to the contribution limits in Feb. 2008 on behalf of, a group of citizens that want to pool their money to run independent political ads for or against candidates based on their support for the First Amendment. will accept money only from individuals—not corporations or unions—and will not make any contributions to political candidates or parties.

Today’s filing was posted by SCOTUSblog here. Check out IJ’s resource page on the case here.

Filed Under: Blog

Elena Kagan and free speech

Filed Under: In the News

Would Kagan Ban Books?

Filed Under: In the News

The Un-DISCLOSEd Witness

Every so often a congressional committee holds a hearing with a “mystery witness,” a whistle-blowing employee or a criminal informant who testifies from behind a screen with no name provided. It’s great theatre and sometimes provides compelling evidence.

The House Administration Committee’s recent hearings on the “DISCLOSE Act” went the mystery route one better, including (or, perhaps more accurately, excluding) a mysteriously missing witness: anyone from the Federal Election Commission, the agency that would be charged with enforcing the proposed law.

Whether an oversight or a deliberate exclusion, the omission speaks volumes about the attitude and intention of the Committee’s unseemly rush to push DISCLOSE towards passage. Apparently the Committee isn’t really interested in a serious discussion about how the legislation would work, to whom it would apply, and whether its apparent effects really are intended.

Read the rest of Mason’s commentary at The Washington Examiner‘s Opinion Zone.

Filed Under: Blog, Disclosure, Disclosure Press Release/In the News/Blog

Kagan reveals her campaign finance views…

…via Sen. Arlen Specter (D-Penn.), and it’s not encouraging to defenders of free political speech in America.

According to Politico, Sen. Specter emerged from a private meeting with Kagan to reveal that she thinks the Supreme Court should defer to Congress in matters like Citizens United v. Federal Election Commission:

Emerging from a 30-minute closed-door meeting in his office, Specter said Kagan was “forthcoming” during their talk, saying she sided with him on several issues, most notably her concern about the Supreme Court’s decision this year in Citizen United v. the Federal Election Commission that opened the door to increased corporate and union spending in federal elections.

Asked if their talk made him more comfortable with her nomination, Specter said, “It did.”

“When you talk about Citizens United. … She said there wasn’t sufficient deference to Congress, something I feel very, very strongly about.”

The Hill also noted this minor revelation from Kagan:

“She was very forthcoming in our discussion,” Specter said. “We talked about the Citizens United case and she said she thought the court was not sufficiently deferential to Congress.
“The issue of deference to Congress on fact-finding matters is something which I consider very important.”

The Center for Competitive Politics wrote about Kagan’s “chalky” views on campaign finance yesterday. This news sounds like fingernails on the board to us.

Filed Under: Blog

The Center for Competitive Politics is now the Institute for Free Speech.