For the purposes of discussion, we once again must remind ourselves what the First Amendment to the Constitution actually says: “Congress shall make no law … abridging the freedom of speech, or of the press.”
This presumably would preclude the majority party in Congress from advancing legislation to stifle or gag potential critics, at a time when Congress and its rulers stand in general public disfavor, on the eve of an election when absent restrictions on political speech they could sustain losses, possibly severe. Of course, to take this theme to its logical end, the vulnerable party must “carve out” exemptions tailored to its supporters, free them to maneuver, to spend and speak on its behalf. More arbitrary exemptions could soothe large political organizations — make a deal with them, lest they be tempted to fight back.
This sounds like the work of a petty dictator in some backward land where laws quickly lose meaning if inconvenient to those in power. But, this is the Congress of the United States, where campaign finance reform means restricting enemies, favoring friends and to heck with the First Amendment. The “shall make no law” business applies to others.
The project in question is called the DISCLOSE Act, which has just passed the House and is pending in the Senate. The bill ostensibly is a reaction to the Supreme Court’s January decision in Citizens United v. Federal Elections Commission, which said Congress could not selectively muzzle political speech by corporations or unions. The new bill requires corporations and nonprofits to disclose spending on campaign ads. Corporate CEOs must appear in ads they support. Top donors must be listed. Many corporations — holders of federal contracts or recipients of bailout funds — will be silenced altogether, forbidden even to make contributions. Corporations with a minority of foreign stockholders — say, BP or Verizon — would be kept quiet. Trade unions, and especially public employee unions, which coincidentally spend 95 percent of their political funds in support of Democrats, would be largely exempt. Unions would even be able to move large sums from place to place and cause to cause in secret, according to the Center for Competitive Politics. Small grassroots organizations would be subject to all the onerous and expensive reporting requirements while large groups like the Sierra Club, AARP and National Rifle Association would be exempt. The “carve out” exemption was added, reportedly, to placate the NRA, which subsequently dropped its opposition to the bill.
If passed the bill will go into effect in 30 days, in time to cause chaos in the coming elections and too fast for judicial review.
The act “fails to improve the integrity of political campaigns in any substantial way while significantly harming the speech and associated rights of Americans,” concluded the American Civil Liberties Union, which coincidentally would be free to speak under the NRA “carve out.” Said ACLU Washington Director Laura W. Murphy: “Our Constitution embraces public discussion of matters that are important to our nation’s future and it respects the right of individuals to support those conversations without being exposed to unnecessary risks of harassment or embarrassment. Only reforms that promote speech, rather than limit it, and apply evenhandedly, rather than selectively, will bring positive change to our elections.”
The bill is sponsored by Rep. Chris Van Hollen, D-Md., who happens to be campaign chair for House Democrats, and Sen. Charles Schumer D-N.Y., the former head of the Senate Democrats’ campaign committee. Schumer bragged about the law’s “deterrent effect.”
“They are auctioning off pieces of the First Amendment in this bill,” said Rep. Dan Lungren, R-Calif., as the House considered the bill late last month.
Critics bemoan the law’s two tiers: Unions, mostly exempt; large, influential special interests, exempt; everybody else, show us the money or shut up.
“Shall make no law”? They must be laughing.
Tracy Warner’s column appears Tuesday through Friday. He can be reached at email@example.com or 665-1163.