By Jessica E. Schumer, 3L, Yale Law School & Member, ACS Yale Chapter. Schumer is also the author of "Making Sense with Democratic Dollars: How Congress Can Use the DISCLOSE Act to Incentive Small Donor Participation After Citizens United," available here.
Last Thursday the long awaited congressional response to Citizens United was unveiled in the form of The Democracy Is Strengthened by Casting Light On Spending in Elections (DISCLOSE) Act. While the pressure to fast-track this legislation and enact it before the midterm elections is understandable, the DISLCOSE Act presents an opportunity to do more than just play defense; with slight modifications, the DISCLOSE Act could be a powerful offensive tool. One minor change in the bill would encourage greater small-donor participation by incentivizing all non-profit groups, from the Chamber of Commerce to the Sierra Club, to voluntarily accept contribution limits for independent political expenditures.
One million dollars of political ads paid for with contributions raised in $100 amounts from 10,000 contributors is and should be perceived differently than one million dollars raised in $50,000 amounts from 20 contributors. Distinguishing ads based on their funding as opposed to their content, which is and should be protected by the First Amendment, makes political, legal and practical sense.