Senate Rules Committee to take up DISCLOSE Act on Wednesday

The Senate Rules will hold a hearing on Wednesday, July 23, on the DISCLOSE Act and “the need for expanded public disclosure of funds raised and spent to influence elections.” Hearing Notice. 10 a.m., 301 Russell Senate Office Building.

Roll Call reported earlier, Democrats Reintroduce DISCLOSE Act:

Senate Democrats broadened their assault on unrestricted political money Tuesday, introducing a campaign finance disclosure bill that its authors said will be voted on this year.

Senate Majority Leader Harry Reid had already promised a vote on a constitutional amendment that would let Congress and the states curb political spending. Democrats now plan to also vote on the disclosure bill known as the DISCLOSE Act, which Republicans blocked via filibuster in 2010 and 2012.

“Since the Supreme Court’s disastrous Citizens United decision, a torrent of dark money has swept through our political system, giving corporations and billionaires the ability to buy and sell elections,” said Sen. Sheldon Whitehouse, D-R.I., at a Capitol Hill news conference. Whitehouse was joined by Senate Rules Chairman Charles E. Schumer, D-N.Y., and by Democratic Sens. Michael Bennet of Colorado, Richard Blumenthal of Connecticut and Elizabeth Warren of Massachusetts.

Whitehouse’s reintroduction of the DISCLOSE Act coincides with a multi-pronged push by Democrats and their allies off Capitol Hill to score political points by attacking unrestricted, “secret” political money. Reid levels assaults virtually daily on the billionaire industrialists Charles and David Koch, who have helped underwrite tens of millions in political spending by conservative tax-exempt groups that don’t publicly report their donors.

Senate Democrats are also holding a series of hearings on undisclosed political money and on New Mexico Sen. Tom Udall’s proposal for a constitutional amendment, which would challenge a string of Supreme Court rulings, including the 2010 Citizens United v. FEC ruling to overturn limits on independent political spending.

Republicans have rejected Democrats’ proposed constitutional amendment as a blatant free speech violation, and have launched their own public relations campaign to equate campaign finance disclosure with political intimidation. Asked about allegations that disclosure invites harassment, Whitehouse scoffed that “someone who has the capacity to spend tens of millions of dollars in an election to get their way” need not be “worried about being taunted.”

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Democrats narrowed the bill considerably in 2012, and that more-limited version of the DISCLOSE Act was the one reintroduced today.

Asked about Democrats’ own unrestricted political spending Tuesday, Whitehouse said “everyone should follow as much transparency as possible,” but that Democrats can’t “unilaterally disarm.” He added that liberal outside spending might actually help spur GOP support for disclosure.

Democrats at the news conference displayed on a poster board a list of Republican senators who have endorsed disclosure in the past, including Sens. Lamar Alexander of Tennessee; John McCain of Arizona; Mitch McConnell of Kentucky, the Senate GOP leader; Lisa Murkowski of Alaska; and Jeff Sessions of Alabama. Whitehouse also quoted aloud several pro-transparency comments from Republicans, including McConnell.

But the likelihood that Democrats will win GOP support for either their constitutional amendment or the recently-reintroduced DISCLOSE Act remain virtually nil.

The Tea-Publican position on disclosure of campaign expenditures is extreme and far to the right of the majority opinion in Citizens United v. Federal Election Comm’n (.pdf). Citizens United challenged BCRA’s disclaimer and disclosure provisions. The majority opinion by Justice Anthony Kennedy rejected its challenge:

The Court has explained that disclosure is a less restrictive alternative to more comprehensive regulations of speech. See, e.g., MCFL, 479 U. S., at 262. In Buckley, the Court upheld a disclosure requirement for independent expenditures even though it invalidated a provision that imposed a ceiling on those expenditures. 424 U. S., at 75–76. In McConnell, three Justices who would have found §441b to be unconstitutional nonetheless voted to uphold BCRA’s disclosure and disclaimer requirements. 540 U. S., at 321 (opinion of KENNEDY, J., joined by Rehnquist, C. J., and SCALIA, J.). And the Court has upheld registration and disclosure requirements on lobbyists, even though Congress has no power to ban lobbying itself. United States v. Harris, 347 U.S. 612, 625 (1954) (Congress “has merely provided for a modicum of information from those who for hire attempt to influence legislation or who collect or spend funds for that purpose”). For these reasons, we reject Citizens United’s contention that the disclosure requirements must be limited to speech that is the functional equivalent of express advocacy.

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Last, Citizens United argues that disclosure requirements can chill donations to an organization by exposing donors to retaliation. Some amici point to recent events in which donors to certain causes were blacklisted, threatened, or otherwise targeted for retaliation. See Brief for Institute for Justice as Amicus Curiae 13–16; Brief for Alliance Defense Fund as Amicus Curiae 16–22. In McConnell, the Court recognized that §201 would be unconstitutional as applied to an organization if there were a reasonable probability that the group’s members would face threats, harassment, or reprisals if their names were disclosed. 540 U. S., at 198. The examples cited by amici are cause for concern. Citizens United, however, has offered no evidence that its members may face similar threats or reprisals. To the contrary, Citizens United has been disclosing its donors for years and has identified no instance of harassment or retaliation.

It should be noted that the Court is referring to physical threats of harm and violence to individuals. This goes back to the NAACP case in which disclosure of contributors names would have exposed them to a very real threat of physical harm and violence including assault, battery, murder and lynchings at that time in our history.

An economic boycott of a business, on the other hand, is itself a form of political speech protected by the First Amendment. As David Macary wrote, “Boycotts are manifestations of public outrage aimed at specific targets, for specific reasons. Economic leverage isn’t the enemy of free expression; it’s a form of free expression.” We Can Write Letters to the Editor or We Can Boycott. Of course, this Supreme Court may find that the political speech of a corporation  is superior to and supercedes the right of the people to engage in political speech against a corporation.

A campaign finance system that pairs corporate independent expenditures with effective disclosure has not existed before today. It must be noted, furthermore, that many of Congress’ findings in passing BCRA were premised on a system without adequate disclosure. . . . 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 corporation’s 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.” 540 U. S., at 259 (opinion of SCALIA, J.); see MCFL, supra, at 261. 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.

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We find no constitutional impediment to the application of BCRA’s disclaimer and disclosure requirements to a movie broadcast via video-on-demand. And there has been no showing that, as applied in this case, these requirements would impose a chill on speech or expression.

Full disclosure and full transparency with real-time posting of campaign expenditures on a campaign disclosure web site is what was contemplated by the Supreme Court in Citizens United: “With the advent of the Internet, prompt disclosure of expenditures can provide . . . citizens with the information needed to hold corporations and elected officials accountable for their positions and supporters.” The DISCLOSE Act does not go this far, yet Tea-Publicans will do everything in their power to prevent any disclosure and transparency of “dark money” at all. They don’t believe that you have the right to know who is trying to buy your democracy. They are not on your side.