Reformers left asking “Wha happened?” over demise of DISCLOSE

October 1, 2010   •  By Sean Parnell
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Back in nineteen seventy mrrphph, I was in a TV show called “Wha’ Happened?”, and whenever anything went wrong, I would turn to the camera and say, “Wha’ happened?” We had all kinds of catchphrases, like, uh, “I’ve got a weal wed wagon!”, and, “I can’t do my wuurrrk!”, and I think I was the first guy to say, “I don’t think so!” But it was cancelled after a year, which is actually good, because that’s how you build a cult…

            “Mike Lafontaine” in A Mighty Wind

In the week since the DISCLOSE Act met its second and perhaps final fatal blow in the U.S. Senate, the so-called campaign finance “reform” community has been perplexed and outraged by the failure of their latest grand proposal to regulate political speech in America. For some reason I have the image of Fred Wertheimer of Democracy 21 and Craig Holman of Public Citizen sitting at their desks, a dazed and angry look on their face, asking themselves over and over again “Wha happened?”

Well, the cult of “reform” hasn’t been cancelled yet (although it too can trace its modern lineage to nineteen seventy mrrphph with the founding of Common Cause and passage of the Federal Election Campaign Act and its 1974 amendments), but there seems little doubt that much of their agenda has been.

DISCLOSE is dead and appears unlikely to have another resurrection in its future, and despite up to $15 million dollars being spent by advocates of government financed political campaigns to push the Fair Elections Now Act through Congress, that bill does not appear to have a chance either. And of course, the Supreme Court continues to favor First Amendment rights over “reformers” desire to limit and control political speech in America.

The DISCLOSE Act was ultimately undermined by a series of Clouseau-esque bungles by “reformers” that they were unable to overcome. With that in mind, I thought it might be helpful to provide a few answers over the next several days to the question, “Wha happened to DISCLOSE?”  

Today, a brief review of the rhetorical problem associated with the way the bill treated business corporations compared to unions.

Listening to the furious backlash against the Citizens United decision by “reformers” along with their advocacy of the DISCLOSE Act, it was blindingly obvious that “reformers” thought that corporate spending was a grave threat to the Republic, but they had no problem with unions spending money in political campaigns.

Several incidents illustrate this:

  • A witness from the Brennan Center testifying to Congress about Citizens United warned gravely of the dangers of corporate spending in elections, but when asked about unions admitted that she hadn’t even bothered to consider union spending at all.
  • President Obama in his comments about Citizens United and the DISCLOSE Act repeatedly singled out corporate spending as the reason to oppose the decision and favor the legislation, while the subject of unions never once came up in his comments to my knowledge.
  • Floor statements by Senators leading up to the most recent vote on the DISCLOSE Act once again focused almost exclusively on the perils of unrestrained corporate spending (with “special interests” also getting some attention), with almost no mention of union spending.

It turns out that, when the near-exclusive focus of your rhetoric in support of passing the DISCLOSE Act is on stopping corporate spending in elections, then lots of people are going to take you at your word and believe that you’re just trying to stop corporate speech. Which is a problem when you’re trying desperately to persuade people that the bill applies evenly to both business corporations and unions.

Even if DISCLOSE had treated business corporations and unions the same – and it plainly did not, unless you believe banning the political speech of half of the largest companies in America without banning speech by a single union somehow constitutes “identical” treatment – the case for DISCLOSE was offered in such a way that few could conclude anything other than that the bill was primarily aimed at business corporations, and that union political spending would be left untouched.

So by focusing on political spending by business corporations and ignoring unions in their rhetoric, “reformers” ensured that those Republican Representatives and Senators who might otherwise be sympathetic to a bill like DISCLOSE would see it instead simply as an ideological and partisan effort to silence voices that the Democratic Congressional leadership found inconvenient to their election hopes. This, needless to say, is not the way to get Republican support for “reform,” something that would be required to get a 60th vote in the Senate to break a filibuster.

Sean Parnell

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