President Obama and leading Democrats are pushing the House to vote on a controversial campaign-finance bill that the U.S. Chamber of Commerce is blasting as "unconstitutional" and a "desperate attempt" by Democrats to grab a political advantage in the upcoming midterm elections.
The bill, called the Disclose Act, appears to be a blatant effort by Democrats in Congress to find a way around the Supreme Court's recent Citizens United v. FEC
ruling, which struck down provisions of McCain-Feingold campaign-finance reforms that severely restricted the rights of corporations and nonprofit groups to run political advertising.
The Supreme Court ruled such restrictions violate the First Amendment right to free speech.
But this new effort includes a series of provisions seeking to disclose donors involved in political advertising as well as saddling private business with boatloads of paperwork to discourage their involvement in the political process.
The constitutional issues involved make it all the more surprising that some members of Congress want to try a legislative maneuver to evade the ruling, says Hans Von Spakovsky, senior legal scholar for The Heritage Foundation.
"Members of Congress have the same obligation that the president does, and that judges have, to uphold the Constitution," Von Spakovsky tells Newsmax.
"That means they should not be sponsoring, pushing, or voting in favor of bills that very clearly are unconstitutional. This particular law has many provisions, especially based on the Supreme Court's Citizens United
ruling, that violate the First Amendment. They're trying to restrict political speech, and they're trying to restrict political advocacy."
In some ways, the Disclose Act represents the fulfillment of President Obama's State of the Union address, when he publicly scolded the Supreme Court for its ruling, alleging that it would "open the floodgates for special interests, including foreign corporations, to spend without limit in our elections."
Obama urged Congress "to pass a bill that helps to right this wrong."
Rep. Chris Van Hollen, D-Md., chairman of the Democratic Congressional Campaign Committee, and Sen. Charles Schumer, a former chairman of the Democratic Senatorial Campaign Committee, are co-sponsoring the Disclose Act.
Democrats had hoped to push it through the House Rules Committee, and possibly bring it to the floor for a vote as early as Friday. But the rules committee session was postponed on Thursday, and now the bill isn't expected to come up for a vote until sometime in June.
The roster of organizations expressing their concern about the measure is long and growing. Among them: the NRA, the NAACP, the National Association of Manufacturers, the National Retail Federation, the U.S. Travel Association, the National Federation of Independent Business, the National Restaurant Association, and the American Trucking Association, to name a few.
Despite that opposition, House Democrats are expressing cautious optimism they have the votes they need to get the bill through the House. It's unclear how it would fare in the Senate.
Democrats are promoting the bill as a way to disclose to the American people who's behind the political advertising they are exposed to.
Even the bill's proponents, however, are touting it as a way to tighten the spigot on corporate speech related to campaigns.
"The deterrent effect should not be underestimated," Schumer said when the New York Democrat rolled out the bill.
That "deterrent effect" is the bill's inclination to discourage companies, trade groups, and other organizations from exercising their First Amendment right to express their political views. That right was upheld in Public Citizens.
Von Spakovsky tells Newsmax that previous campaign-finance laws have given unions and corporations identical treatment. "This new provision kind of breaks that compact," he says.
Chamber President and CEO Thomas J. Donahue, who says Democrats desperately are seeking a way to improve their prospects in November, has dubbed the Disclose Act the "Incumbent Protection Act."
Among its controversial provisions:
- It actually would expand the window for "electioneering communications," which was 30 to 60 days under McCain-Feingold, to 90 days before a primary or caucus. During that period corporations and nonprofits would face stringent procedures for any corporate advertising. The electioneering window, once opened, would continue through to the general election. So because presidential primaries fall well before the election, the restrictions could conceivably be in place for over a year.
- The bill excludes media companies, in order to avoid First Amendment concerns. But in its early form, the exclusion did not include bloggers and Internet sites, which play an increasingly important role in providing news to voters. (One committee offered an amendment to broaden the exclusion to include websites.)
- The bill requires a mountain of paperwork, because companies must submit a list to the FEC of all donors who contributed more than $600. "In the 1950s, the NAACP went to court to say it should not have to disclose its membership list," Von Spakovsky says. He contends the provision to disclose members' names poses constitutional problems "because it interferes with their right to associate."
- Free speech advocates warn that disclosing donors' names will invite recrimination and harassment. "The hidden agenda is to be able to intimidate people," says Von Spakovsky. "That clearly happened in California with individuals whose names were disclosed because they gave more than $100 for Proposition 8 on gay marriage. They were subjected to harassment, vandalism at their homes, and people lost their jobs. I think forcing organizations to list their donors will lead to intimidation and harassment."
- The bill would require that the actual ads include a "stand-by-your-ad" provision, similar to the disclaimer now heard when candidates state that they approved the message that was paid for by their campaign fund. The Disclose Act message would be different, however. It would require a CEO and the top donor to the group to include their names and titles in the ad. Heritage's Von Spakovsky says the bill could require the "top five" donors paying for an ad to list their names. In some ads, The Washington Post reports, the donors would repeat their names two or three different times. The bottom line, opponents say, is that an ad easily could contain up to 15 seconds of disclosure announcements, which would at the very least make it impossible to execute a 15-second political ad. Corporate and nonprofit political ads would become much more expensive – another example of the "deterrent effect" that Sen. Schumer professes to be seeking.
- The bill would require groups to include on their websites a database listing their spending on ads. Posting and updating such a list could represent a significant expense for smaller groups, according to those opposed to the legislation.
- Companies who have more than 20 percent foreign ownership, or who have a board of directors controlled by foreign nationals, could not run political ads. "If that is a valid ban because you don't want foreign influence in your elections," Von Spakovsky asks, "then why don't you extend that ban to unions that have foreign membership, or have foreigners on their boards?"
- Companies that receive a federal bailout, or who enter into government contracts of $50,000 or more, could not advertise either. The logic: Such firms have a conflict of interest in trying to influence electoral outcomes.
"If that is a rational reason for having that kind of a ban," Von Spakovsky says, "then it would apply to anybody who gets money from the government. And yet this applies only to companies that receive government contracts. It doesn't apply to grant recipients and unions such as AFSCME [The American Federation of State, County, and Municipal Employees], where the union has a representational contract with the government because many of its union members work for the government. So unions will still be able to engage in political activity, where companies won't."
Above all, free speech advocates say, the law would add to the massive uncertainty already surrounding the legalities of corporate political advertising. Companies seeking to avoid controversy, and potential legal issues, would likely forgo political advertising altogether.
"I think it's very transparently political," Von Spakovsky tells Newsmax, "because Schumer and other sponsors of the bill have been very open, and quoted, as saying they know many of the provisions in this thing are onerous, and they hope, in fact, that it will deter corporations and other organizations from engaging in any political activity. So it's pretty clear they want the bill to keep people out of participating in the elections."
But keeping companies from speaking out and influencing the political process is precisely what's needed, say those who support the law. Not passing it is the real danger to the democracy, they say.
"All Americans should feel a very great sense of urgency about this," Meredith McGehee, policy director at the Campaign Legal Center, which supports the bill, told The Washington Post. "It's a real threat if this bill does not get signed into law."
Von Spakovksy and the growing roster of companies and trade associations that oppose the bill see less altruistic motives behind the bill.
"I can't help but conclude that the reason they're doing that is because they believe they need it give them an advantage in the upcoming election," he says.
Two Republicans, Rep. Mike Castle of Delaware and Rep. Walter Jones of North Carolina, are co-sponsoring the bill, Van Hollen says.
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