You’d think that members of Congress would have a keen knowledge of and appreciation for congressional history; you’d think they would know better than to repeat the mistakes made by their legislative body in the past. But if partisanship guides your actions and winning elections at all costs is your objective, then repeating unconstitutional behavior is apparently not beyond the pale.
That is exactly what is about to happen: The House of Representatives is expected to vote in the next day or two on the DISCLOSE Act, a law purportedly intended to blunt the effects of the Supreme Court’s Citizens United v. FEC decision. That case restored the First Amendment right of political speech by throwing out a federal ban on independent political advocacy by unions and corporations, including both for-profit and non-profit associations.
The real effects of the DISCLOSE Act will be to deter political speech (including criticism of incumbents, such as its chief sponsors, Sen. Chuck Schumer (D., N.Y.) and Rep. Chris Van Hollen (D., Md.)) and political advocacy by corporations and associations that Democrats don’t want participating in the American political process. It includes both absolute bans on independent political advocacy and new, burdensome disclosure requirements. Schumer admitted when he introduced the bill that “the deterrent effect should not be underestimated.” During a House Administration Committee hearing, Rep. Michael Capuano (D., Mass.) made no bones about the fact that he hoped this Act “chills out all . . . I have no problem whatsoever keeping everybody out [of elections]. If I could keep all outside entities out, I would.”
Of course, the “deterrent” and “chilling” effect is meant to hit corporations — including nonprofit associations like Citizens United, the conservative advocacy organization that brought the original lawsuit — but not unions, which are exempted from most of the provisions of the bill. No surprise there, since unions support Democrats almost exclusively, with huge amounts of money. And the majority party is moving this bill at a breakneck pace through Congress to have it in place for the November elections, because Democrats fear November will be their election Waterloo.
The DISCLOSE Act would ban certain government contractors from engaging in any political speech, yet unions that represent government employees, and organizations like Planned Parenthood that receive large amounts of federal grants, would not be affected. American companies with American workers and American officers could be banned from speaking if a small minority of their shareholders are foreigners, yet unions with foreign officers and foreign members could spend as much money on political advocacy as they want. And many of the new disclosure provisions imposed by the act were made onerous and burdensome for the specific purpose of deterring political speech.
If all of this sounds depressingly familiar, it should. The DISCLOSE Act is the modern-day version of the Alien and Sedition Acts, which were passed by the Federalists in 1798 to quell political opposition from the Republicans, led by Thomas Jefferson. These acts were one of the worst (and most noxious) violations of the First Amendment ever passed by Congress. Under their terms, Federalist judges jailed or fined 25 people, mostly Republicans newspaper editors, and many of their newspapers were forced to shut down.
One of the men arrested was Benjamin Franklin’s grandson, Benjamin Franklin Bache. Another was Rep. Matthew Lyon, who was jailed while a Republican congressman from Vermont and won reelection behind bars. The first man arrested was Luther Baldwin, of New Jersey, who was convicted and fined $100 for wishing that a blast from the presidential saluting-cannon would hit Pres. John Adams in “his arse.” Under the DISCLOSE Act, if a corporate association met the qualifications for the government-contractor ban on independent expenditures and ran an ad saying the same thing about President Obama in 2012, it could also be fined and its corporate officers sent to jail
As always, there are those willing to sacrifice liberty in order to gain a personal or political advantage for themselves. The National Rifle Association, which previously called the Citizens United decision a “defeat for arrogant elitists who wanted to carve out free speech as a privilege for themselves and deny it to the rest of us,” has apparently agreed to withdraw its opposition to the DISCLOSE Act in exchange for a narrowly drawn exemption. Instead of applying to all nonprofit advocacy groups, including the smaller, less powerful ones with limited budgets that will be particularly affected and burdened by these new regulations, the exemption will apply only to 501(c)(4) organizations with members in all 50 states, numbering more than one million overall, that have been in existence for ten years and receive 15 percent or less of their funds from corporations. The NRA, a well-funded, powerful organization, coincidentally fits within this exemption. So the NRA has received its 30 pieces of silver in return for forsaking the political speech rights of the rest of us.
Public opposition to the Alien and Sedition Acts was so great that it was major factor in the election of Thomas Jefferson as president in 1800. Although Adams neither vetoed nor protested these Acts, he was apparently embarrassed enough about their passage that he later denied any responsibility for them. Unfortunately, neither the members of Congress pushing the DISCLOSE Act nor the president seem at all embarrassed about this pending abrogation of basic First Amendment free-speech and associational rights. If the unconstitutional, partisan, and pernicious DISCLOSE Act is passed and signed into law by President Obama, it will be interesting to see if the American public has the same reaction to this noxious bill in 2010 and 2012 that the public had in 1800.
– Hans A. von Spakovsky is a senior legal fellow at the Heritage Foundation (www.heritage.org) and a former commissioner on the Federal Election Commission.