Citizens United, DISCLOSE, and “these important issues”

In the wake of the Senate’s vote not to invoke cloture on the misnamed DISCLOSE Act, self-styled reformers (and Senator Chuck Schumer) are talking tough, claiming they’ll soon bring the bill back for another run. We will see.

The bill failed because not one Republican, including several who voted for McCain-Feingold eight years ago, not least John McCain, could be fooled by the DISCLOSE charade. So, what is next?

While some continue to argue, preposterously, that DISCLOSE was about nothing but disclosure and good government, there is a another, more moderate-sounding argument, that we expect to hear a lot in the next year. Law Professor Richard Hasen, the editor of the influential Election Law Blog, voiced this line today at Politico’s Arena. In this telling, Prof. Hasen admits that Democrats overreached, giving opponents “talking points” against DISCLOSE. But now, goes the logic, the onus is on “moderate Republicans” to “come out with their own proposal to do the important things that need to be done with campaign finance disclosure after Citizens United.”

Really.

As we have noted ad nauseum, with or without DISCLOSE, political speakers face unprecedented disclosure requirements. In fact, reformers who continue to claim that the public “needs to know” seem unable to identify a single speaker whose basic motivation, political orientation, and source of funding cannot be known with nothing more than a single two second Google search. Still, this isn’t enough. As Prof. Hasen claims, “We have never had the situation before on the federal level where people, and now presumably corporations and labor unions, could make large—indeed unlimited—contributions to fund independent expenditures.”

Actually, we have—clearly until the federal law prohibting them was passed in 1947, and through soft money funding of “issue ads” (remember when the distinction between independent expenditures and issue ads was denounced by reformers as “functionally meaningless?”), on through 2002. Moreover, we have had this situation in more than half the states right up ’til the day the Supreme Court decided Citizens United. And in each case, democracy was neither jeopardized, nor did it fall apart. 

The second claim raised by supporters of DISCLOSE is the much demogogued argument that the Citizens United ruling would allow “foreign corporations” to participate in American elections. This play to xenophobia is, however, wrong. As we’ve also noted, federal law already prohibits any corporation that is not incoporated and headquartered in the U.S. from making any political expenditures. Moreover, FEC regulations prohibit any foreign national from being involved in political spending decisions. And the FEC has also interpreted the law to mean that any funds spent must come from U.S. earnings. The reality, of course, is that U.S. companies with minority (or even majority) foreign ownership have for years operated PACs in accordance with these rules, paid for issue ads prior to McCain-Feingold’s passage in 2002, and spent much more on lobbying. Yet before Citizens United, there was not a peep from Sen. Schumer or any other supporter of DISCLOSE that this “foreign” involvement in U.S. elections posed a unique problem. 

The third claim is that these new restrictions are needed to prevent government contractors from wielding undue influence.  Again, prior to Citizens United, these same companies lobbied, ran PACs, and paid for issue ads, and their status as contractors was never considered sufficient reason to need new rules. When contracts are subject to open bidding, there is no serious concern about improper influence from campaign spending.

In summary, the “moderate” argument is going to be something like this: “OK, DISCLOSE overreached a little. There’s nothing really wrong with it, but it gave ‘talking points’ to opponents and didn’t have bipartisan support, so now ‘moderate’ Republicans have some special obligation to address these problems.” We are cautiously optimistic that no one will be fooled by this line. DISCLOSE’s purpose, as stated by its lead sponsor, Sen. Schumer, is to “deter” political speech that the Supreme Court has made clear is constitutionally protected. There are no “important issues” that are addressed by DISCLOSE, or that need to be addressed (and can constitutionally be challenged) because of Citizens United.

Moderates will oppose the incumbent self-dealing, partisan motivation, harassment of grassroots speakers, and invasions of privacy that are at the core of DISCLOSE.  If any of the claims by proponents of addressing “these issues” begins to come true, there will be plenty of time to develop meaningful, moderate, narrowly tailored solutions.

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