Federal Judiciary

Return of the Speech Police -- By: The Editors

Only in the Through the Looking-Glass world inside the Beltway could the DISCLOSE Act -- a piece of legislation meticulously crafted to protect Washington?s two most powerful special-interest groups -- be presented to the public as a courageous stand against special-interest groups. A vote on the bill scheduled for today was canceled after the Blue Dog Democrats and the Congressional Black Caucus objected, for very different reasons, but the bill?s backers promise to bring it back. They shouldn?t: Though it is cloaked in populist rhetoric, the DISCLOSE Act is, like every other piece of campaign-finance legislation, a cynical bid to secure the interests of those two powerful constituencies -- incumbents and the media.

The DISCLOSE Act is a project of Rep. Chris Van Hollen (D., Md.), head of the Democratic Congressional Campaign Committee, and Sen. Charles Schumer (D., N.Y.), the most reliably anti-corporate Democrat that Wall Street money can buy. The bill is the Democrats? response to the Supreme Court?s decision in Citizens United v. Federal Election Commission, which held that the First Amendment protects the right of an activist group to distribute a film critical of Hillary Clinton during her presidential campaign, even though some of the money for the project had come from businesses and non-profit corporations, the free-speech rights of which previously had been restricted by the McCain-Feingold Act. Citizens United restored the right of citizens to raise their voices -- and money -- for or against the candidate or cause of their choice, regardless of whether those citizens happen to be organized as a business or a group of businesses, a nonprofit corporation, etc. One would think that such a decision would be cause for general rejoicing in a country where free speech is the first item on the Bill of Rights. In reality, the decision sent incumbents into a panic; as it happens, most of the incumbents are Democrats this time around, but bear in mind that this mess was started by a piece of legislation named for the Republicans? last presidential nominee.

The DISCLOSE Act is, among other things, a petty piece of corruption. It selectively applies rules about how political communications are designed and financed, and does so in such a way as to restrict the ability of independent citizens? groups to bring their grievances to the public square. For instance, if a coalition of small banks wanted to put together an advertising campaign to go after the bipartisan architects of the bailouts, their efforts would be hobbled by onerous rules about what appears in the ads and how they are paid for. Worse, DISCLOSE goes far beyond McCain-Feingold, restricting political speech that was perfectly legal even before the Citizens United decision. By redefining thousands of businesses and non-profits as ?government contractors,? it bans them from so much as mentioning an incumbent or candidate from three months before the primaries all the way through the general election -- four months before the primaries in the case of presidential elections. That?s a six-month media blackout for congressional elections and more than a year in presidential races.

Advertised as an effort to restrict the influence of special-interest groups, the DISCLOSE Act in fact contains a special exemption for the special-interest group par excellence, the National Rifle Association, whose opposition the Democrats did not believe they could withstand. So while other gun-rights organizations, such as the Second Amendment Sisters, would be caught up in the legislation?s cumbrous and invasive disclosure requirements, the NRA would be exempt from the worst of them. The exemptions would cover AARP as well, while smaller organizations -- or large ones formed more recently -- would be disadvantaged by the rules. When Chuck Schumer teams up with the NRA, something strange is afoot. (It was the NRA carve-out, and not the bill?s attack on free speech, that drew the Congressional Black Caucus?s objections.)

The bill also includes exemptions for the union bosses who did so much to put Barack Obama in the White House and Nancy Pelosi in the speaker?s chair. Under DISCLOSE, contributions raised in aggregate -- from union dues, to take one non-coincidental example -- would only have to be disclosed when an individual?s annual contributions exceed $600. Most union members see slightly less than that expropriated from their wages annually. As campaign-finance lawyer Cleta Mitchell observes in the Washington Post, this means that in most cases union members? ?contributions to labor?s campaign-related spending wouldn?t need to be disclosed#...#even to the union members whose dues are spent for political purposes.? In somebody?s imagination, that strange arrangement constitutes transparency.

But this is not really about the NRA or the AARP or the SEIU. This is mainly about defending the seats of incumbents and, secondarily, protecting the influence of the mainstream media.

There are three main kinds of capital in politics: access, publicity, and money. Incumbents, firmly ensconced in positions to which they are reelected at an astonishing rate (94 percent of House incumbents were reelected in the 2008 elections), control the access. The media controls the publicity. And that leaves money -- including the money needed to circulate political criticism -- as the only area in which those outside the cozy nexus of politics and press have a reasonable chance to compete. Thus, campaign-finance ?reformers? have been trying to diminish that source of competition for years. When independent political voices are muffled, that leaves incumbents of both parties in a relatively strong position: They already control ballot access, districting, and the Federal Election Commission. Restricting independent critics leaves the field to the two parties? incumbents and their media surrogates. You do not want political incumbents to dominate the electoral process for the same reason you don?t want the CEO to be chairman of the executive-compensation committee: There is too much opportunity for self-dealing.

Likewise, the restriction of independents groups? ability to craft and distribute political communications leaves the establishment media in a stronger position; though the foundation of its historical oligopoly is crumbling under the pressure of new-media competitors, the old media is determined to cling to what advantages remain to it. The legacy press resents the ability of independent groups to advance criticisms and narratives that have not been vetted in editorial offices in Washington and New York, and it jealously guards its role as public-opinion kingmaker. It is no surprise to find the DISCLOSE Act being endorsed by the likes of the New York Times.

The DISCLOSE Act goes far beyond disclosure. Too far, in fact. A bill simply requiring disclosure of contributors to electoral and issue-advocacy campaigns -- timely disclosure, to be published on the FEC?s website for public scrutiny -- would provide the transparency voters need without the free-speech restrictions we abhor. But such a bill would do little or nothing to advance the interests of Washington?s biggest power players, and so the Democrats propose to resuscitate the DISCLOSE Act instead, if they can cut a deal with the Blue Dogs and the Black Caucus. The health-care debate proved that the Blue Dogs can be bought off, and the Black Causus probably will not stand up to Pelosi and Schumer for very long. It will be up to Republicans to stop this bill, on constitutional and moral grounds, and they should do so.

Full post as published by Bench Memos - National Review Online on June 18, 2010 (boomark / email).