No fireworks exploded at this afternoon’s House Rules Committee hearing on the DISCLOSE Act (H.R. 5175). First Amendment political rights, though, remain at serious risk of going up in smoke as the majority moves forward with an ill-advised bill to ban a significant amount of political speech that was legal even before Citizens United v. Federal Election Commission.
After two false starts (one before Memorial Day and the second last week), the Committee adopted a rule that provides for an hour of debate on the bill before a vote, likely Thursday morning, according to Capitol Hill sources.
Rules Committee Ranking Member David Dreier asked for four hours of debate, and, especially considering the 45-page Manager’s Amendment adopted in the Rules Committee with no advance notice, his request was eminently reasonable. All GOP motions, however, were rejected. Dreier also moved to make in order an amendment by Rep. Donna Edwards (D-Md.) to eliminate the carve out exempting the National Rifle Association from a disclosure provision of the bill. Democrats also thwarted that effort, endorsing a two-tiered system of First Amendment political rights: one for large, entrenched, Beltway lobbying groups and another for grassroots, local nonprofits.
Democrats will allow floor votes on five amendments:
(1) An amendment offered by Rep. Gary Ackerman (D-N.Y.) would “require covered organizations to report required disclosures to shareholders, members or donors in a ‘clear and conspicuous manner,'” according to a summary provided by the Rules Committee.
(2) An amendment offered by Rep. Dennis Kucinich (D-Ohio) that would “prohibit those with leases on the Outer Continental Shelf from making campaign-related expenditures.”
This amendment is a pretty clear example of why the First Amendment is written in absolutist terms to restrict government—”Congress shall make no law… abridging the freedom of speech…” Members of Congress can’t help themselves from seeking to silence whatever company or group is disfavored (or may criticize incumbents). In the case of oil company BP, which this amendment clearly targets in the wake of the devastating oil spill in the Gulf of Mexico, this knee-jerk attempt at censorship is not surprising. Talking points released by DCCC Chair and DISCLOSE author Chris Van Hollen paint BP as a bogeyman that might pour billions of dollars into American elections: DISCLOSE, Van Hollen’s office wrote, would stop “manipulation of elections by fly-by-night ‘hit’ groups funded by U.S.-based foreign corporations such as BP, special interests, and billionaire CEOs.”
As CCP has explained ad naseum, existing FEC regulations already prevent foreign corporations from even providing advice about U.S. political spending. This bill would criminalize political activity by U.S. citizens who associate (via a minority stake in a company) with foreign nationals. The Democrats’ explicit xenophobia in demagoguing all things foreign is disgusting, cynical and shameful.
(3) An amendment offered by Reps. Bill Pascrell (D-N.J.), Tom Perriello (D-Va.) and Alan Grayson (D-Fla.) would “prohibit political expenditures by corporations with significant foreign government ownership and corporations that have a majority of shares owned by foreign nationals.”
This amendment appears to redefine a “foreign national,” (which would be prohibited from spending money on U.S. politics) as a company with as little as 5 percent voting shares owned by a foreign country, foreign government official or a corporation controlled by a foreign government or official. This amendment would also keep the 20 percent standard for the amount of voting shares a foreign national could accumulate in a U.S. company before that company loses its First Amendment political right to advocate for or against a federal candidate.
Democrats have never explained why, but the language of these provisions, and the previous language on this expansion of the “foreign national” definition, appear to apply only to individual investors. So, a company with a foreign national owning 23 percent of voting shares would be banned from politics but a competing company in the same industry with four foreign investors owning 10 percent of voting shares each (with the rest of the shares belonging to Apple Pie-loving Americans) would be free to spend. These provisions do not appear to restrict labor unions with similar foreign involvement at either the leadership or membership level.
(4) An amendment offered by Rep. Patrick Murphy (D-Penn.) would “ensure that citizens know if special interests outside their district or state are trying to impact an election by enhancing advertisement disclaimers to include the city and state of the ad funder’s residence or principle office.”
This amendment would add even more time to an incredibly burdensome disclaimer requirement, effectively government-mandated political speech. From the American Civil Liberties Union letter opposing the DISCLOSE Act: “The DISCLOSE Act mandates disclaimers on television and radio advertisements that are so burdensome they would either drown out the intended message or discourage groups from speaking out at all… The individual or organizational disclosure statement, the significant funder disclosure statement, and the top-five funders statement each take up six seconds, meaning more than half of many 30-second television messages would be filled with compelled disclosures. It is difficult to even conceive of a way to use 15-second messages. And it is unclear whether the provision for ‘hardship’ situations would satisfactorily resolve such problems.”
The Stand By Your Ad requirement is a bogus, insider deal to enrich and advantage the campaigns of Members of Congress, especially incumbents, over independent groups. Under the SBYA provisions of DISCLOSE, including this newest wrinkle, when an independent group runs a political ad, the government would force broadcast outlets to offer federal candidates and political parties a deeply discounted ad rate to respond.
As CCP explains in our policy analysis of the DISCLOSE Act, this is exactly the opposite of the incentive for the “Stand By Your Ad” federal candidates run, which triggers a lower ad rate for themselves… “but those disclaimers are not mandatory -they are only required if a candidate wishes to preserve a statutory right to receive the “lowest unit charge” (LUC) on ad purchases. This incentive would not be available to organizations engaging in independent expenditures. Thus, unlike the candidate provision, which is voluntary and offers an incentive for compliance, the SBYA provision of DISCLOSE would rely on an involuntary mandate. It is doubtful the courts would approve of the government effectively hijacking as much as 50 percent of a speaker’s message.”
The National Association of Broadcasters also has a helpful backgrounder on why this giveaway to candidates and parties at the expense of local broadcasters is a bad idea.
(5) An amendment offered by Rep. Steve King (R-Iowa) that would “eliminate all limitations on federal election campaign contributions.”
In a political vacuum (or if we were talking about improving campaign finance law sometime other than mere months before a major election), Rep. King’s amendment should be adopted. The federal contribution limit of $2,400 is arbitrary, self-imposed by Congress and well below a level that most Americans find potentially corrupting. In an environment where independent groups have been unshackled of unconstitutional restrictions on their political advocacy, raising or eliminating contribution limits would allow candidates to spend less time fundraising; help insurgent challengers take on incumbents with established, Beltway fundraising networks; reduce reliance on Political Action Committees and put decisions about campaign finance limits in the hands of voters rather than Congress.
Nonetheless, Democrats approved this amendment, rather than many other reasonable Republican amendments offered, because they wanted the fig leaf of claiming that they allowed Republican input into the process while knowing this amendment is unlikely to pass (and not really germane to this ugly bill).
All in all, this hearing was just another step in a cynical process the majority is using to advance a bill explicitly meant to limit First Amendment politics rights in time for the 2010 midterm elections.
