Tag: disclose act

A Look Back at DISCLOSE

The DISCLOSE Act, as expected, failed on a cloture vote yesterday. Let’s review why it failed as a matter of politics:

The Democrats have majorities in both chambers of Congress. Many members of those majorities were concerned that Citizens United would lead to political speech that lessened their chances of re-election. The DISCLOSE Act was an effort, within limits imposed by the courts, to discourage that speech and thus increase the chances threatened members of the majority would be re-elected.

A simple disclosure requirement imposed on independent spending would not have done the trick. Many of the groups that congressional Democrats fear would have no problem with a simple disclosure attached to their independent ads. So the House sponsors ramped up the disclosure requirement in the bill by requiring CEOs to appear in the ad endorsing its content and the revelation of donors supporting the ad. They also broadened prohibitions on speech by government contractors and companies headed by non-citizens. Supporters of the legislation argued such prohibitions would cover most of the Fortune 500. The purpose of the legislation seemed to be getting around Citizens United and reinstating the ban on corporate speech.

The effort started to come apart when the National Rifle Association demanded an exemption from the enhanced disclosure mandates. The NRA had enough support from House Democrats to kill the bill so DISCLOSE’s sponsors exempted the NRA from its requirements. Other groups also wanted an exemption. Reformers were appalled even as the the groups granted exemptions grew by the day. The bargaining process that in most legislation became all but public with DISCLOSE. Like most “reform” bills, DISCLOSE presented itself as an ethical exercise to protect the integrity of the government. One does not bargain over righteousness. Senate Democrats threatened to vote against the bill because of the NRA.

After much work and more bargaining, a majority for the bill was found in the House. On the Senate side, the sponsors needed at least one Republican vote. They could not get it. The senators from Maine correctly surmised the bill was a crude partisan undertaking even by the standards of campaign finance. They also reasonably called for Congress to take its time and produce a bill that might not cause serious unexpected consequences. But the whole point of the bill was to move quickly to protect incumbents in the majority in the fall. Democrats settled for blaming Republicans for blocking the bill and hoping voters would remember all this in five months.

A simple disclosure requirement might have passed, but it would not have been very useful politically so it was not an option. More than anything else, the three or four months devoted to DISCLOSE indicated the intensely political nature of campaign finance regulation, a species of legislation said to be devoted to the general interest in government integrity. Once again political realities belie mistaken hopes held by the general public more than the seasoned pols on Capitol Hill.

DISCLOSE Near the End

The cloture vote on the DISCLOSE Act will soon be taken. It appears that its supporters lack the votes to close off debate.

Brad Smith explains some of the problems of DISCLOSE.

Roger Pilon notes other failings.

President Obama tried to rally the troops yesterday by taking a populist tone. I have never thought Obama was a very good demagogue, and his efforts at populism belie his strengths. President Obama and congressional Democrats are hoping a defeated DISCLOSE will be good for their fall campaigns. Historically, campaign finance issues have had little salience with the public. On these issues, more than others, hope does seem to spring eternal.

Incumbency as a Special Interest

Today Politico Arena asks:

Is DISCLOSE dead on arrival?

My response:
With the American public, especially the long unemployed, clamoring for ever-more campaign finance regulations, you’d think that passage of the Democrat’s DISCLOSE Act would be a piece of cake. Yet the party that perfected the politics of special interests is coming up short in its effort to pass a measure they claim will protect us from special interest politics. The ironies are endless.

Take the most obvious: Notwithstanding its purported purpose, this bill is replete with carve-outs for special interests, from the NRA to the Sierra Club and far beyond. The special treatment of unions is of course a dead giveaway about the real motives behind the bill. Then there’s the bill’s failure to preserve the anonymity of small donors – nominally the constituency of Democrats, and the people campaign finance “reform” purports to protect through its myriad “leveling” provisions – the chilling effects of which have contributed to the ACLU’s opposition to the bill. And speaking of chilling effects, disclosure aside, the onerous reporting requirements alone will chill the speech of many.

But perhaps the greatest irony of all concerns the conflict of interest that pervades such legislation. Here we have a party that will assiduously sniff out any conceivable conflict of interest that a business might have calling for more regulations, the effect of which will make it harder for opponents to challenge their incumbency. Talk about a conflict of interest – incumbents writing the rules under which challengers and their supporters may speak in upcoming elections. The First Amendment – “Congress shall make no law …” – was written to prohibit that kind of self-dealing.

Change? We Don’t Need No Stinkin’ Change

Today Politico Arena asks:

Can the DISCLOSE Act, with exemptions carved out for large special-interest groups, effectively rein in the influence of spending in campaigns?

My response:

It’s been a bad week for Barack Obama. His Tuesday night Oval Office speech, the first of his presidency, was panned by left and right alike, not least on the comedy channels. And now at week’s end congressional Democrats have had to pull their answer to the Supreme Court’s Citizens United decision that he so ridiculed during his State of the Union Address – because Blue Dog Democrats and the Congressional Black Caucus have balked. Still worse, although it looks like nothing will come of this latest effort by Democrats to rig campaign finance law in their favor, the damage has been done by the union and NRA carve-outs in the DISCLOSE bill – shades of ObamaCare’s Cornhusker kickback. Democrats don’t seem to get it. The voters want change, not this.
But how could it be otherwise? This mostly Democratic campaign finance crusade over several decades, resulting in an incomprehensible body of regulations replete with draconian sanctions for missteps, has been an utter failure on its own terms. Designed nominally to get the corrupting influence of money out of politics, every restriction has been followed by ever more money in politics, because the real aim has nothing to do with corruption and everything to do with incumbency protection – by making it ever-more difficult to mount a challenge to congressional incumbents. In this morning’s Wall Street Journal Kim Strassel gives us a glimpse of that as it has unfolded in this latest effort at “reform.” But all you really need to know is that in over half of our states we have virtually no campaign finance restrictions, and there’s no more corruption in those states than in the others. Sometimes facts settle issues, and there’s one big one.

Citizens United/Disclose Act Debate

In case you missed yesterday’s excellent Hill Briefing on the DISCLOSE Act and other recent developments in speech restrictions, next week I’ll be debating Citizens United and the future of campaign finance regulation.  The event, cutely titled “Citizens United, Republic Divided; Campaign Finance Law After Citizens United,” takes place June 24 at noon at American University’s Washington School of Law, Room 401.  That’s 4801 Massachusetts Ave. NW here in Washington. 

IJ’s Steve Simpson and I will be up against American U’s Jamie Raskin and Election Law Blog’s Rick Hasen (who has also blogged this notice).  RSVP to Michael Vasquez at mv5786a [at] student.american.edu so there’s enough lunch to go around.

For Cato’s take on the DISCLOSE Act, see John Samples’s latest podcast, blogpost, and op-ed.  See also NRA board member Cleta Mitchell’s stunning op-ed about that organization’s cynical Faustian bargain.  Finally, here’s the piece John and I published in January in the wake of the Citizens United decision.