DISCLOSE Act

  • September 24, 2010
    Guest Post

    By Taylor Lincoln, Director of Research, Congress Watch, Public Citizen.
    It is universally recognized that the Supreme Court's Citizen's United v. Federal Election Commission opinion allowed corporations to spend unlimited sums to influence elections. Much less attention has been given to how much the opinion relied on the promise of disclosure.

    But only part way into the first post-Citizens United political season, that promise has already been broken - and the last chance to repair it may have just passed us by.

    In his majority opinion in Citizens' United, Justice Anthony Kennedy wrote, "[a] campaign finance system that pairs corporate independent expenditures with effective disclosure has not existed before today." The ban on corporate-funded electioneering ads instituted by the 2002 Bipartisan Campaign Reform Act (BCRA) was, Kennedy wrote, "premised on a system without adequate disclosure" such that "the public may not have been fully informed about the sponsorship of so-called issue ads." With disclosure, the public could evaluate issue ads and determine "whether elected officials are in the pocket of so-called moneyed interests."

    Kennedy's clear implication was the public would know the sponsors of the ads that Citizens United permitted.

    But no such assurance was in place when Citizens United was released. Although BCRA required prompt disclosure of the funders of electioneering communications, the practical effect of that mandate had already been eviscerated more than two years earlier, when the Supreme Court in Federal Election Commission v. Wisconsin Right To Life, Inc. lifted the ban on corporate funding for such messages. The FEC responded by relaxing the rules so that only contributors who gave money specifically earmarked for an ad had to be disclosed.

  • July 29, 2010
    Guest Post

    By Jeffrey D. Clements. Mr. Clements is former Chief of the Public Protection and Advocacy Bureau in the Massachusetts Attorney General's Office, and now focuses on litigation and appeals with Clements Law Office, LLC. Mr. Clements filed an amicus brief in the Citizens United v. FEC case on behalf of several democracy advocacy organizations, and serves as general counsel of Free Speech for People. Mr. Clements is also author of the ACS Issue Brief, "Beyond Citizens United v. FEC: Re-Examining Corporate Rights."
    A few days ago, Senate Republicans united to defeat the Disclose Act, critical legislation intended to respond to the Supreme Court's invalidation in Citizens United v. FEC of the ban on the use of corporate general treasury funds to make independent political expenditures. The House passed the Act in June. But despite the wishes of large majorities of the American people and of 58 of 100 Senators, the legislation could not get past a Republican filibuster.

    Following the modern and somewhat insulting acronym trend, the formal name of the legislation is the "Democracy Is Strengthened By Casting Light on Spending in Elections Act". The Senate version of the Disclose Act would amend the Federal Election Campaign Act of 1971 to restrict political contributions, independent expenditures and electioneering communications by government contractors, recipients of TARP bail-out money, holders of federal off-shore drilling leases, and foreign national corporations. The Act would apply to "corporations and other organizations" and requires reporting and disclosure of the identity of donors to an independent expenditure campaign, disclosure of political spending to shareholders and members, and certification and "stand-by-your-ad" statements by responsible officers of the corporation ("I am XXX and I approve this message.")

    In January, President Obama rightly called the Citizens United decision a "strike at democracy itself." Most Americans agree. According to a recent comprehensive poll about Citizens United, 82% of respondents worried that Congress "will not go far enough to keep corporations from having too much influence," and 77% believe that Congress should promote a Constitutional amendment to address the problem.

    Yet, in a measure of how damaged our democracy has become due to special corporate interest money, a minority of Senators representing a fraction of the American people killed even the modest response of requiring reporting and disclosure of corporate political spending, and restricting such spending by certain foreign corporations and government contractors.

    In doing so, the surreal and undemocratic world of Washington circa 2010 was on full display:

    First, preference for action by a wide majority of the American people and even a wide majority of the US Senate doesn't matter. The bizarre filibuster rule, appearing nowhere in the Constitution, again allowed legislation to "fail" despite the support of 58 Senators representing 3/4 of the States and of the American people. Once again, regardless of the wishes of the other 306 million Americans, those fighting for necessary reform were reduced to begging unsuccessfully for the support of Senators Collins and Snowe, representing the 1.3 million good people of Maine.

  • May 4, 2010
    Guest Post

    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.