|
To go to the Free Speech index page,
click here.
To view or download a PDF version of this
letter, click
here.
June 22, 2012
RE: “DISCLOSE Act” (S.
2219)
Dear Senator:
The National Right to
Life Committee (NRLC), representing affiliated
right-to-life organizations in all 50 states, is
strongly opposed to the so-called “DISCLOSE Act”
(S. 2219), as introduced by Senator Whitehouse on March
21.
Like previous versions of
the DISCLOSE Act, the main purpose of S. 2219 is to
evade the holdings of the U.S. Supreme Court in
Citizens United v. FEC (2010), and to discourage and
reduce speech that criticizes or annoys those who hold
federal office. NRLC is opposed to invoking cloture
on the motion to proceed to this legislation, and
intends to include any such roll call in its scorecard
of key votes for the 112th
Congress, as we did for the 111th
Congress.
This legislation has been
carefully crafted to maximize short-term political
benefits for the dominant faction of one political
party, while running roughshod over the First Amendment
protections for political speech that have been clearly
and forcefully articulated by the U.S. Supreme Court in
a series of landmark First Amendment rulings,
culminating in FEC v. Wisconsin Right to Life, 551
U.S. 449 (2007) and Citizens United.
Enactment of the DISCLOSE
Act would not be a curb on corruption, but itself a type
of corruption – an abuse of the lawmaking power, by
which incumbent lawmakers employ the threat of criminal
sanctions, among other deterrents, to reduce the amount
of private speech regarding the actions of the lawmakers
themselves.
The true purposes of
the DISCLOSE Act
NRLC is the furthest
thing from a “shadow” group. Our organization’s name and
contact information always appear on our public
communications, and we openly proclaim the public
policies that we advocate. But there is very little in
this bill, despite the pretenses, that is actually
intended to provide useful or necessary information to
the public. The overriding purpose is precisely the
opposite: To discourage, as much as possible, disfavored
groups (such as NRLC) from communicating about
officeholders, by exposing citizens who support such
efforts to harassment and intimidation, and by
smothering organizations in layer on layer of record
keeping and reporting requirements, all backed by the
threat of civil and criminal sanctions. Indeed, the
bill would benefit from a truth-in-labeling amendment to
clarify that “DISCLOSE” actually stands for “Deterring
Independent Speech about Congress except by Labor
Organizations and Selected Elites.”
All of the cant by
backers of this legislation about “buying elections” and
“protecting democracy” is intended to obscure the
reality that neither National Right to Life nor any
other incorporated group has any power whatever to
“influence elections,” no matter how much money is
available, except by informing and persuading
individual citizens – all of them adults with a presumed
capacity to make up their own minds about which messages
they will accept and act on. It is precisely that
process of informing and persuading that the crafters of
this legislation fear and seek to suppress – all the
while seeking to hide their self-serving purposes behind
layers of sanctimonious, pseudo-populist rhetoric.
As eight former members
of the Federal Election Commission pointed out in a 2010
letter to the Committee on House Administration, “the
FEC now has differing regulations for 33 types of
contributions and speech and 71 different types of
speakers.” The federal laws and regulations governing
“political” speech at that time already consumed more
than 800 pages, and the FEC had published more than
1,200 pages in the Federal Register explaining
its decisions. But that is not enough for the sponsors
of the DISCLOSE Act, because the bill would add 27 pages
of additional barbed-wire statutory barriers to speech
about policymakers and pending legislation, which if
enacted would in turn generate hundreds of new pages of
regulations.
Speech-restrictive
provisions of S. 2219
The bill would
codify, in Section 2, a vague and expansive definition
of “the functional equivalent of express advocacy,” that
applies to communications that “when taken as a whole,
it can be interpreted by a reasonable person only as
advocating the election or defeat of a candidate, taking
into account whether the communication involved mentions
a candidacy, a political party, or a challenger to a
candidate, or takes a position on a candidate’s
character, qualifications, or fitness for office.” There
is little that an organization could say by way of
commentary on the votes or positions taken by an
incumbent member of Congress that would not fall within
this expansive definition, in the eyes of some
“reasonable person” – most often, an annoyed incumbent
lawmaker or his operatives.
The time periods over
which the government would have authority to regulate
speech about those who hold or seek federal office –
so-called “electioneering communications” – would be
dramatically expanded under S. 2219. As the American
Civil Liberties Union explained in its excellent
six-page March 28, 2012 letter opposing S. 2219:
The DISCLOSE Act
expands the period of time during which issue advocates
– those taking no position in support of or in
opposition to a political candidate – must disclose
their donors if they wish to publish issue ads. The Act
would expand the “electioneering communications” period
– currently the 30 days before a primary and the 60 days
before a general election – quite significantly. For
communications that refer to a candidate for the House
or Senate, the period would begin on January 1 of the
election year and end on the election, and would
encompass the entire period following the announcement
of a special election up to the special election. In
concrete terms, were this bill law now, the period for
communications referring to a member of this [Senate
Rules & Administration] Committee would extend for a
full 10 months before the 2012 election in early
November, whereas currently the relevant period is
limited to two months.
As a result, the
special reporting rules would apply to communications
about all House members and one-third of senators for
effectively the entire second session of each Congress.
During this period of time – nearly half of every
Congress for members of the House – if any advocacy
organization wished to run an ad that even mentioned a
candidate’s name, that organization would face the
obligation of publicly disclosing personally identifying
information about many of its donors. Such organizations
would face two unsatisfactory choices: protect the
privacy of their donors by refraining from issue
advocacy or give up the privacy of their donors and
place at risk the opportunity for additional donations
by those supporters. Either way, this bill would have a
deeply chilling effect on political speech about pending
legislation for more than 40% of each Congress.
For communications
mentioning a presidential or vice presidential candidate
. . . pure non-partisan issue advertising that happens
to mention a presidential or vice-presidential candidate
– including ads commenting, for instance, on a
candidate’s record on contraception, gun control, or
trade with China, and even if they assiduously avoid
support or opposition for the candidate – would be
subject to the heightened disclosure rules in most
states for significantly more than a year before a
general presidential election. For similar ads
mentioning other candidates, the special rules period
will begin on January 1 of the election year.
The concerns are
further heightened when, as in the current presidential
election year, one of the candidates is the incumbent
president running for reelection. The result of the
extended period is a chilling effect on public criticism
of the president or vice president, including truly
nonpartisan criticism on specific policy issues, during
more than a fourth of a president’s first term.
Our members and
supporters have a right to support our public advocacy
about important and controversial issues without having
their identifying information posted on the Internet,
exposing them to harassment or retribution by those who
may disagree with their beliefs. As the eight former FEC
commissioners noted in their 2010 letter, “In this,
DISCLOSE infringes on the First Amendment rights of
private association recognized by the Supreme Court in
NAACP v. Alabama, 357 U.S. 449 (1958) . . . Such
information gives political parties and officeholders
powerful information to bully advocacy groups and
intimidate individuals . . .”
S. 2219 also contains
additional provisions that would place an unacceptable
burden on the exercise of First Amendment rights. As the
ACLU pointed out in its March 28 letter, “The DISCLOSE
Act mandates disclaimers on television and radio
advertisements that are potentially so burdensome they
could either drown out the intended message or
discourage groups from speaking out at all.”
It should be self-evident
that the real purpose of such burdensome requirements is
not to inform the public, but to deter potential donors
from financially supporting the work of groups such as
NRLC in the first place. As Senator Schumer, the prime
sponsor of the previous version of the DISCLOSE Act,
acknowledged in a moment of candor, the “deterrent
effect should not be underestimated.”
We strongly urge you to
oppose this pernicious, unprincipled, and
constitutionally defective legislation. In our scorecard
and advocacy materials, the legislation will be
accurately characterized as a blatant political attack
on the First Amendment rights of NRLC, our state
affiliates, and our members and donors.
Sincerely,
David N. O’Steen, Ph.D.
Executive Director
Douglas Johnson
Legislative Director
(202) 626-8820
federallegislation@nrlc.org |
