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.
Sean
Parnell
President
Center for
Competitive Politics
124 S. West
Street, #201
Alexandria, VA 22310
(703) 894-6800
phone
(703) 894-6813
direct
(703) 894-6811
fax
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
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.
Sean
Parnell
President
Center for
Competitive Politics
124 S. West
Street, #201
Alexandria, VA 22310
(703) 894-6800
phone
(703) 894-6813
direct
(703) 894-6811
fax
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.
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?
Sean
Parnell
President
Center for
Competitive Politics
124 S. West
Street, #201
Alexandria, VA 22310
(703) 894-6800
phone
(703) 894-6813
direct
(703) 894-6811
fax
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
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.
In a message dated
9/23/2010 3:34:35 P.M. Eastern Daylight Time, Rick.Hasen@lls.edu
writes:
von Spakovsky:
Coates is Risking His Job at DOJ By Testifying Before U.S.
Commission on Civil Rights
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.
--
Rick Hasen
William H. Hannon Distinguished Professor of Law
Loyola Law School
919 Albany Street
Los Angeles, CA 90015-1211
(213)736-1466
(213)380-3769 - fax
rick.hasen@lls.edu
http://www.lls.edu/academics/faculty/hasen.html
http://electionlawblog.org/
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