Americans should have no illusions about the Disclose Act: It’s on the congressional docket because the Democratic leadership fears electoral disaster in November. In particular, they fear the Citizens United decision will empower businesses and conservative groups to spend money persuading voters to throw the rascals out.
Citizens United said corporations, labor unions and political groups could urge Americans to vote for or against candidates for federal office. The Supreme Court also said Congress could require disclosure of the money supporting such speech. Mandating disclosure can provide voters with information they want. It can also go too far and impose costs on speakers that chill speech.
Any group funding an ad that advocates the election or defeat of a candidate must already disclose its donations. This bill requires far more. Business leaders and select others must appear on camera and endorse their ad. In fact, so much of an ad will be taken up with mandatory speech there will be little time for material political comment.
These new requirements will expose more donors to retribution from incumbent politicians. The sponsors of the bill may also hope that forcing disclosure will lead to a backlash by customers or shareholders against businesses or groups. If so, the leaders of the businesses or groups in question may decide to forgo the costs of speaking out and remain silent. In other words, the authors of Disclose apparently hope to chill the speech of their political opponents.
Such silence would be a shame. Spending money to express a political view harms no one. Voters rightly have the power (and responsibility) to accept or reject what they hear. But Congress should not decide for the voters what speech might be heard, even when the way to discourage debate is “only disclosure.”
Disclose also bans spending on speech by government contractors and firms that received government bailouts in 2008. Courts have allowed bans on contributions by government contractors to preclude “corruption.” But the proposed prohibitions apply to businesses that want to spend money on political ads. They are not donating money to candidates or to the parties. There can be no exchange of money for favors. Absent the possibility of corruption, these bans on political speech will be invalidated by the courts.
The Disclose Act is a cynical partisan ploy that violates the letter and the spirit of the First Amendment. Voters deserve better.