At a Cato Institute-sponsored panel discussion Tuesday, CCP Chairman Brad Smith and Patton Boggs attorney William McGinley elaborated on the latest congressional attack on free speech-the DISCLOSE Act.
The Director of Cato’s Center for Representative Government, John Samples, who moderated the event, has a podcast today focusing on the DISCLOSE Act. Video of Tuesday’s event will eventually be posted on the Cato Institute website.
Smith explained that the DISCLOSE Act seeks to make illegal a large amount of political activity allowed even before the Supreme Court’s landmark decision in Citizens United v. Federal Election Commission, such as issue ads. Smith said that Democrats are using Citizens United-federally and in states-to press legislation that would enact broad campaign finance restrictions not even addressed in Citizens United. As White House Chief of Staff Rahm Emanual has explained, “You never want a serious crisis to go to waste.” Smith cited Vermont as one such state that had never attempted to restrict independent expenditures by corporations until after the Citizens United decision. Suddenly, Democrats sensed an opportunity to exploit this phony “crisis.”
McGinley focused on the more practical issues that the DISCLOSE Act would foist on candidates, businesses, nonprofits and other political speakers. McGinley began by stating that two major political speech facts need to be understood while crafting legislation. He explained that political speech is a ‘give and take’ that must have the ability to be nimble, and that political speech requires money to get a message out to the American public. He remarked that the DISCLOSE Act would destroy an advocate’s ability to be nimble and give the advantage to the political opponent because a speaker would be forced to telegraph their intentions.
Furthermore, he said the amount of paperwork and confusion that would occur prior to the 2010 election among non-profits and corporations would be vast because DISCLOSE would completely alter the campaign finance system, introduce prior restraint and require tedious steps such as forcing candidates to certify that no campaign staff are foreign nationals. McGinley said that disclosing donors to independent groups and forcing them to appear in campaign advertisements is unnecessary, particularly because some large donors might not support specific messages, and would ‘chill speech.’ McGinley finished by contemplating the effect that the DISCLOSE Act will have on the Internet, including a continuing threat to the political speech of bloggers.
Finally, a brief question and answer section brought up numerous questions on the DISCLOSE Act, but the most significant question related to the National Rifle Association’s negotiated exemption from the DISCLOSE Act-the Shotgun Sellout.. McGinley said this exemption would make the DISCLOSE Act less likely to withstand constitutional scrutiny because it allowed Congress to pick a “preferred class of speakers, while silencing the rest.” The DISCLOSE Act is likely to come up for a vote within the next few days.
