The Center for Competitive Politics (CCP) has prepared a legislative analysis of “The DISCLOSE Act” in advance of the House Administration Committee’s 5 p.m. hearing today on the bill. The memo will be filed as written testimony for the committee record.
“The proposals in the “DISCLOSE Act” (Democratic Incumbents Seeking to Contain Losses by Outlawing Speech in Elections) amount to nothing more than political posturing,” said CCP Chairman Bradley A. Smith. “This bill would create another bureaucratic layer of political speech regulation, which would punish small business owners and grassroots groups who lack the resources to comply with such onerous provisions.”
The Senate sponsor of the legislation (H.R. 5175 and S. 3295), Sen. Chuck Schumer (D-N.Y.), openly admitted he thought the bill would discourage independent ads by companies. Common Cause and Public Campaign circulated a memo last year calling for a new disclosure regime after Citizens United to “expose corporations and candidates to potential embarrassment.”
White House Counsel Bob Bauer wrote about the costs associated with onerous disclosure regimes in while practicing at the law firm Perkins Coie. Bauer explained how disclosure can expose grassroots groups to frivolous legal complaints and other harassment by political opponents:
“So for the committee, donor or vendor whose mandated disclosures are scrutinized by the state and allied nongovernmental ‘watchdogs,’ the disclosure regime is not only a challenge to privacy but also the gateway to entanglement with the legal process,” Bauer wrote in the Election Law Journal (6 Election L.J. 38). “The state is not facilitating an exchange of information with their fellow citizens primarily for their enlightenment. Aided by private organizations well funded in their commitment to campaign finance reform, it is committed to the production and availability of data for the purposes of developing the law and extending its reach.”
The disclosure provisions in the “DISCLOSE Act” (§ 211-213) are unnecessary, as current statutes and FEC regulations prevent the type of opaque spending of money with which the bill’s sponsors are concerned. Knee-jerk legislation imposing a new disclosure regime for groups that wish to speak-months before an election-presents a serious threat to the constitutional protection of political speech. The legislation does not provide time for the FEC to update its regulations, ensuring that groups wishing to speak face confusion and uncertainty about the new laws-perhaps the intent of incumbents wary of criticism.
“The Democrats who crafted this regulatory maze behind closed doors are demanding that lawmakers rush through this bill as campaign season is already in full swing,” said Vice President Steve Hoersting. “Their allies in the self-styled reform community have implored Republicans to simply support ‘disclosure,’ while admitting that the bill’s intent is to silence disfavored interests.”
Lawyers serve their administration’s interests. We have no doubt that Bob Bauer is a loyal, central figure in the Obama Administration. His past comments on disclosure issues, though, are thought-provoking and particularly trenchant. We don’t know if congressional Democrats-or President Obama-sought Bauer’s counsel on this bill before they introduced it. If they did, we assume they ignored it.
White House Counsel Bob Bauer on disclosure from his “More Soft Money Hard Law” blog circa 2006-2007:
Studying Disclosure, And Its Uses
Aug. 23, 2007
Better disclosure does not result in more , or more timely, reporting on campaign finance … scandal reporting does not rise with the quality of the disclosure regimes… This is absolutely true, and it is one of the reasons why there can likely never be what is called a “disclosure-only” regulatory regime. To the “primary consumers” of the data, disclosure is never enough.
Disclosure for Thee and Not for Me: and the Warnings (Not) of Mr. Ugarte
June 22, 2007
“Watchdog groups”-those marvels of nonpartisanship, nonpolitical missionary work-demand accountability through disclosure up to the point where the disclosure would be their own.
This was too much for the reform community, for, as one of their spokesman [sic] stated: “The notion that the government would make private organizations have to disclose their donors is highly problematic,” [Gary Kalman of U.S. PIRG] said. “I would have a very difficult time supporting that proposal, and there would be significant opposition from across the political spectrum.” [Alexander Bolton, “Groups balk at disclosure,” The Hill, June 21, 2007]
… Now here is a bit of press work that would have benefited from reconsideration prior to release. The “notion” being complained of-disclosure of finances as indicators of interest-is a notion peddled without pause by the same organizations now registering this complaint. They would remain private, of course: private but required, as a condition of participation in the political sphere, to disclosure.
Celebrating McCain-Feingold’s Birthday: “Speech! Speech!”
March 28, 2007
Since few aspiring censors will admit openly to their purposes, the appeal to “disclosure” has given them the moral authority, in public argument, that they need. The stand-by-your-ad requirement is defended as a “disclaimer” requirement, a species of public disclosure. Just as an ad must carry a statement that it was paid by the campaign, not by another, so now it must also notify viewers or listeners that the candidate knew and approved the content of the communication. It is presented as nothing more than a “disclosure.” Its function, in fact, is to create disincentives for certain kinds of mess
ages, negative in tone and content. But “disclosure” sounds so much better…
Since the voters can’t be changed but the law can be, reforms, including McCain-Feingold, strike at the source of the questionable speech with the goal of limiting its supply. It is only disclosure, reform advocates argue: and what could be wrong with that?
“1984”
March 22, 2007
“Disclosure” of the identity of political communications … makes little sense at all.
An argument is fully open to evaluation without attention to the person making it. In fact, this is evaluation on the merits; it is precisely to keep the argument focused on the merits, not judged by the appeal or reputation of the author, that some authors choose not to reveal themselves. It has always been remarkable that proponents of “deliberative democracy”, with their emphasis on reasoned debate, will favor a style of argument that forces reason into the background while propelling personal authorship to the foreground.
…Others say that we need to know who paid for such ad because it might have been a corporation or a rich man or a foreign interest, all looking to exploit their wealth for singular political influence. But it was known that “1984” could have been done for a song, which it was. And it was not placed for payment; it was created and put out for public viewing on blogs, YouTube and via email transmittal.
Such are the reasons for chasing the author of “1984” and for the worried ruminations about online anonymous speech. The author has said that he has given up his job, to avoid harm to his employer and to its clients. He has also said that “This ad was not the first citizen ad, and it will not be the last.”
Attention Citizens! If any of you, like the now exposed ad creator, has also made an “ad on a Sunday afternoon in [their] apartment using… personal equipment (a Mac and some software), uploaded it to YouTube, and sent links around to blogs”, please be on notice: we must know who you are. This is the meaning of the ad, now the episode, fittingly known as “1984”.
The Never Ending Disclosure War
Dec. 20, 2006
As argued here, some of the interest in more detailed disclosure is, in effect, an interest in more regulation. With more data, there is more “oversight”; and with more of this oversight, there is more rulemaking, to address “problems” revealed by various readings of the data. That this is an intended use of data is not an argument against any disclosure, but there is some virtue in being clear about why some of the disputes about disclosure are so fierce. These are regulatory disputes, not merely advocacy on behalf of a public somehow in the market for this kind of information.
On the evidence, the public does not really care too much about these disclosure wars. After all, the FEC received two comments-two-about the proposed disclosure policies, both from tax-exempt organizations dedicated to disclosure. Not even a blogger or two, writing regularly about politics, bothered to express a preference for one level of detail over another.
The Anonymous Donor
Aug. 7, 2006
As been noted here before, disclosure is a mostly unquestioned virtue deserving to be questioned…
