Some of DISCLOSE’s provisions are outright absurd. It would require that the CEO of a company or organization paying for a broadcast ad appear in the ad and state the organization’s name twice, as well as his name, his title, and his approval of the message. The largest contributor to any ad purchased by an organization, such as a trade association or chamber of commerce, would also have to appear on camera and state the organization’s name three times, as well as his name and title and his approval of the message. These disclaimers, in addition to the existing requirement of a statement as to who is paying for the ad, can take up roughly half of every 30-second commercial. The primary “benefit” to the public is that it will learn that the organization already announced as paying for the ad does, in fact, “approve” of it. We see again that the real purpose is to burden speech — or, as the sponsors wrote in their press release upon introducing the legislation, to “partly restore those limits” struck down as unconstitutional by the Supreme Court.
In fact, in key ways the bill extends the prohibition on corporate expenditures beyond what it was prior to Citizens United
. Before the ruling, corporations were prohibited from funding independent expenditures (ads that “expressly advocate” the election or defeat of candidates) at any time, and “electioneering communications” (ads that did not “expressly advocate” election or defeat of a candidate but merely named him or her) within 30 days of a primary or 60 days of a general election. DISCLOSE expands the definition of “electioneering communication” to include any ad mentioning a candidate from 90 days before the primary all the way through the general election. In Illinois this year, that is a twelve-month period beginning in November; in Ohio and Indiana, it runs from the beginning of February through November. In most states, it will run at least six months. Because DISCLOSE prohibits companies with as little as 20 percent foreign ownership, or as little as $50,000 in federal contracts, from running “electioneering communications,” this means that thousands of corporations would be deprived of free speech for as much as a year.
That Congress would respond to a Supreme Court decision affirming corporations’ freedom of speech by restricting that freedom to an even greater extent than it did before the decision is remarkable. The attempt is unlikely to withstand judicial challenge, but, as Senator Schumer made clear early on, he believes the courts won’t have time to rule on the constitutionality of the act before the 2010 election is over.
Whether DISCLOSE passes depends on whether there are any Republican senators gullible enough not to filibuster a law specifically designed to give Democrats an electoral advantage. So far, even John McCain, a supporter of campaign-finance reform, has refused to sign on.
But this is the way of both “campaign-finance reform” and the Obama administration: use the law to silence your opponents. The DISCLOSE Act is a testament to the wisdom of the Supreme Court’s decision in Citizens United. The First Amendment sought to place political speech beyond the government’s control, and we can be glad that it did. Does future Justice Kagan agree?
– Bradley A. Smith is the Blackmore/Nault Designated Professor of Law at Capital University Law School, chairman of the Center for Competitive Politics, and former chairman of the Federal Election Commission. This article orginally appeared in the June 7, 2010, issue of National Review.