Really?
First, it does not provide for the
disclosure of lists of all donor's whose contributions are used for election
advertising, but only those of over $600 per year. There was much criticism
from Republicans that this figure was too high, and would result in the
exempting from disclosure the names of almost all members of membership
organizations (think unions), but that only proves the point that only major
donors (not lists of all members) would be required to be disclosed.
You might note that I said “substantial portions of”
membership lists, not “all” donors. And for trade and professional
associations, as well as at least a handful of teacher unions, many do have
membership dues in excess of $600. And I’m not terribly interested in what the
Republicans criticized – they have their perspective and interests, and CCP has
ours. Those interests converge and diverge often. In this case, I don’t think
I’d agree that $600 constitutes a “major donor.”
Second, an organization may avoid
disclosing the remaining major donors to its non-election efforts ( activist
training, pregnancy counseling, lobbying etc) by establishing an account for
election activity, and only disclosing the major donors to that account.
Yes, an organization that does not wish to avail
themselves of the First Amendment rights recognized under Citizens United to spend money out of
their general treasury, and instead submit to the regulatory structure imposed
by DISCLOSE, can shield from disclosure donors and members to their general
fund. But DISCLOSE forces them to chose – exercise their Citizens United rights and spend from
their general treasuries, or exercise their NAACP
v. Alabama rights, and protect the privacy of their members. Can’t
do both, which would seem to raise substantial constitutional issues, no?
Finally, DISCLOSE provides that ANY
donor to an organization has the personal right to restrict a donation to
non-political use--and that the identity of donors of contributions taken
with such restrictions are not required to be disclosed.
Sure, and as people who both head organizations you and
I both understand that unsolicited contributions do come in, and contributors
are usually not exactly well versed in campaign finance law (although donors to
our respective organizations are probably, by definition, a little more up on
the subject than most). DISCLOSE requires that the donor know at the time the donation
is made that they must also specify that their donation is not to be used for
political use. Meaning you’ll have lots of people making unrestricted gifts to
groups without knowing what hoops they must jump through to avoid being
disclosed.
Also, it again forces organizations and members/donors
to decide which set of constitutional rights they will exercise – free speech,
or associational privacy? Problematic.
Is this closer to Citizens United than
NAACP? I know which way I'd bet...
For the parts of the DISCLOSE Act that address
disclosure of contributions made for the purpose of independent expenditures,
I’d bet the same way as you. For those parts that require disclosure of donors
and members to the general treasury of organizations for which political
spending is a small portion of what they do, it’s far less obvious that the
Supreme Court would sign off on it. And let’s not even get started on the
disclaimer provisions that would require people to stand in front of a camera
and say they approve an ad that they may have little knowledge of or interest
in, or may even oppose.
Ah, but DISCLOSE as currently drafted does NOT do what Sean claims.
First, it does not provide for the disclosure of lists of all
donor's whose contributions are used for election advertising, but only those
of over $600 per year. There was much criticism from Republicans that this
figure was too high, and would result in the exempting from disclosure the
names of almost all members of membership organizations (think unions), but that
only proves the point that only major donors (not lists of all members) would
be required to be disclosed.
Second, an organization may avoid disclosing the remaining major
donors to its non-election efforts ( activist training, pregnancy counseling,
lobbying etc) by establishing an account for election activity, and only
disclosing the major donors to that account.
Finally, DISCLOSE provides that ANY donor to an organization
has the personal right to restrict a donation to non-political use--and
that the identity of donors of contributions taken with such restrictions
are not required to be disclosed.
Is this closer to Citizens United than NAACP? I know which way I'd
bet...
Trevor Potter
From: Sean Parnell [mailto:sparnell@campaignfreedom.org]
Sent: Friday, September 24, 2010
9:46 AM
To: Trevor Potter; Rick.Hasen@lls.edu; election-law@mailman.lls.edu
Subject: RE: [EL] Coates/DISCLOSE
Act
Ah, but DISCLOSE does not just reveal “the sources of funding of political advertising,” it reveals the
general membership and donor lists (or at least substantial portions of it) for
groups for whom political advertising is a small part of what they do. Meaning,
in addition to revealing “the sources of funding of political advertising”
DISCLOSE is also revealing the sources of funding for, say, grassroots activist
training (groups like Americans for Prosperity), unplanned pregnancy counseling
(Planned Parenthood and/or National Right to Life, depending on how one looks
at the subject), lobbying (practically everyone), collective bargaining (for
those few unions, mostly teacher unions that I’m aware of, that have dues in
excess of $600), and the many and varied other activities that nonprofits
engage in.
Will the Supreme Court uphold such far reaching disclosure of
funding that is not intended for or used for political advertising? I’d call it
an open question – yes, they signaled their general approval of disclosure in Citizens United, but NAACP v. Alabama also establishes that
there are limits to disclosure. It is not nearly as simple and straightforward
as you seem to think, particularly when the subject is funds that are not
solicited, intended, or used for political advertising – which, for a 501(c)4
would by definition be the majority of funds.
The Supreme Court in Citizens United has already drawn that
line, very broadly including on the disclosure side of it "the
sources of funding of political advertising" so that "voters are
fully informed about the person or group who is speaking" and the identity
of corporations spending funds on election speech so that shareholders may hold
them accountable. Here is my summary ( from my Congressional testimony) of
that portion of the majority's Opinion, supported by 8 Justices:
Trevor Potter
In
Justice Kennedy’s majority opinion in Citizens United v Federal Election
Commission, 558 U.S. ---- (2010) he made two things very
clear: First, it is generally constitutional to require disclosure of the sources
of funding for spending in federal elections, whether or not that spending
“expressly advocates” the election or defeat of a federal candidate.
Second, he and seven other Justices were clear that they thought such
disclosure was entirely appropriate and useful in a democracy.
Justice
Kennedy stated that disclosure of the sources of funding of political
advertising “provide[s] the electorate with with information" and
"insure[s] that voters are fully informed about the person or group who is
speaking ” Citizens United at 52-53, citing McConnell v FEC, 540 U.S.
93, 196 (2005) and Buckley v Valeo, 424 U.S. 1, 76 (1976) per curiam)). v
Federal Election Commission (Citizens United), at 52-53. He also
cited the holding in Bellotti that “Identification of the source of the
advertising may be required as a means of disclosure, so that the people will
be able to evaluate the arguments to which they are being subjected.” Id.
At 53 (citing First Nat’l Bank of Boston v. Bellotti, 435 U.S.
765, 792, n. 32 (1978).
As
to the argument that disclosure requirements should be limited to “express
advocacy,” Justice Kennedy’s Opinion flatly declared: “We reject this
contention.” Id.
He noted that the Supreme Court had, in a variety of contexts, upheld
disclosure requirements that covered constitutionally protected acts, such as
lobbying. Id.
“For these reasons”, Justice Kennedy stated, “we reject Citizens United’s
contention that the disclosure requirements must be limited to speech that is
the functional equivalent of express advocacy.” Id.
at 54.
As
to the value of disclosure of political speech, Justice Kennedy was equally
clear. He wrote:
“With
the advent of the Internet, prompt disclosure of expenditures can provide shareholders
and citizens with the information needed to hold corporations and elected
officials accountable for their positions and supporters. Shareholders
can determine whether their corporations political speech advances the
corporation’s interest in making profits, and citizens can see whether elected
officials are ‘in the pocket’ of so-called moneyed interests.” Id.
at 55
Justice
Kennedy concluded:
“The
First Amendment protects political speech; and disclosure permits citizens and
shareholders to react to the speech of corporate entities in a proper
way. This transparency enables the electorate to make informed decisions
and give proper weight to different speakers and messages.” Id.
Thus,
Justice Kennedy binds together the two elements of his Opinion—independent
corporate speech in elections is a First Amendment right, and the funding
sources of such speech must be fully disclosed in order to make this
constitutional right function in our political system. This section of
Justice Kennedy’s Opinion was the only one joined by the four Citizens
United dissenters, meaning that the fundamental importance of disclosure
was recognized by eight of the nine Justices. Full disclosure is one of
the few concepts in this contentious area of law to receive such a broad
endorsement from the Supreme Court.
This
background is important to your consideration of the DISCLOSE Act, not only
because it makes it clear that the disclosure provisions of the bill are
constitutional, but because they complete the process begun by the
Supreme Court in the Citizens United decision by requiring the sort of
disclosure that Justice Kennedy and the other Justices found so essential to
our democratic system. I would go so far as to say that unrestricted
corporate speech in elections without disclosure of the sources of such speech
is contrary to the Court’s theory in Citizens United, which paired
corporate First Amendment speech rights with the virtues of disclosure of the
sources of such speech—disclosure to shareholders and to the general public.
From: Sean Parnell [mailto:sparnell@campaignfreedom.org]
Sent: Thursday, September 23, 2010
5:53 PM
To: Trevor Potter; JBoppjr@aol.com; Rick.Hasen@lls.edu; election-law@mailman.lls.edu
Subject: RE: [EL] Coates/DISCLOSE
Act
Well, something that’s worth pondering when the topic is
“disclosure only” is, where does one draw the line? No need to re-hash the
arguments here, I’ll just point out that one can favor disclosure generally
while, at some point, recognizing that it goes too far and infringes on people’s
right to freely associate and exposes them to intimidation, retribution, and
harassment. I assume few here would argue that NAACP
v. Alabama was wrongly decided?
So, rather than shouting “it’s just disclosure, for
God’s sake!” and “But you said kind things about disclosure 5 years ago!”
perhaps a more productive discussion would center around, where should the line
between appropriate and excessive disclosure be drawn, and which side does the
DISCLOSE Act fall on?
Fred's comment speaks of stripping the bill "down to the
disclosure provisions". IF a 'disclosure-only" version of the
DISCLOSE Act were offered in the Senate, it would be completely consistent with
the Supreme Court's decision in Citizens United ( full disclosure of
election-related speech having been endorsed 8-1 in that case), and would be
consistent with what an overwhelming majority of Republican leaders have called
for over the years when they said what we needed was a "disclosure-only
system." Hard to see any rottenness in that approach...
Trevor Potter
From: election-law-bounces@mailman.lls.edu
[mailto:election-law-bounces@mailman.lls.edu] On
Behalf Of JBoppjr@aol.com
Sent: Thursday, September 23, 2010
4:37 PM
To: Rick.Hasen@lls.edu;
election-law@mailman.lls.edu
Subject: Re: [EL] Coates/DISCLOSE
Act
Fred just doesn't understand that this
bill is rotten to the core; there is no "tweaking" that will fix
it. Jim Bopp
DISCLOSE Act Fails on Cloture Vote, 59-39
See here.
According to Fred
Wertheimer, "Senate sponsors of the DISCLOSE Act made clear to Senators
Snowe and Collins that they were prepared to change the bill to strip it down
to the disclosure provisions, to make 2011 the effective date for the
disclosure reforms and to discuss any other changes the Senators wanted to
make. Yet, Senators Snowe and Collins were not even willing to discuss with the
sponsors of the legislation changes in the bill to address any problems they
may have."
CCP rejoices.
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