"House Democrats have been relentless in restricting and intimidating political speech for most groups while carving out explicit exemptions for special interests that favor their policies. It is up to the Senate to rise above these crony politics that guided the passage of the DISCLOSE Act, and instead to allow the First Amendment to stand, protecting political speech for all without regulation."—ALG President Bill Wilson
June 25th, 2010, Fairfax, VA—Americans for Limited Government (ALG) President Bill Wilson today condemned the House of Representatives for passing the DISCLOSE Act that Wilson described as "an egregious violation of First Amendment rights, requiring most corporations and non-profits to comply with labyrinthine regulations while improperly exempting media organizations, the NRA, AARP, the Sierra Club, most unions and others."
"Despite all of the flak about special carve-outs for certain organizations, House Democrats embraced some of the most onerous restrictions on political speech in the history of the Republic while handing out special licenses to the highest bidders," Wilson said.
"The legislation also leaves in place the outdated blanket exemption for media organizations, which can say whatever it is they want about candidates, for or against, without any regulation or disclosure at all," Wilson added.
According to 2 USC 431 (9) (B) (i), the 1971 Federal Election Campaign Act: "The term 'expenditure' does not include any news story, commentary, or editorial distributed through the facilities of any broadcasting station, newspaper, magazine, or other periodical publication". This media exemption to campaign regulation is reinforced in the DISCLOSE Act's language on page 22.
"No bribery crisis of elected officials has ever emerged over editorial endorsements by newspapers or any other media outlet, and yet they have long been exempted from disclosure. Meanwhile, we assume that such a crisis exists with all other speech," Wilson has previously stated.
After criticism from both sides of the aisle, the NRA carve-out was broadened to exempt organizations meeting the following criteria: at least 500,000 dues paying members (down from 1 million), members in all 50 states, receives no more than 15 percent of total funding from corporations or labor organizations, and doesn't use corporate or union money to pay for campaign-related expenses.
Unions also received an exemption since only aggregate contributions of over $600 would be disclosed — most union dues are less than that.
The Act's disclosure requirements include any expenditures in excess of $10,000 of express advocacy for or against a candidate, which must be reported to the FEC within 24 hours. The disclosure requirements extend to 120 days prior to the first presidential primary or caucus, and 90 days before the first Congressional primary or caucus, and extend through general election day. Anyone who invests or donates $1,000 or more to the company or organization that engages in express advocacy of a candidate, except for media organizations, would have to have their names submitted to the FEC.
Wilson said that Congress was not consistently applying First Amendment protections. "The exemptions that are in place for media, the NRA, AARP, the Sierra Club, and unions are the protections that should be in place for everyone. The First Amendment protects political speech from restriction, even if backers of ads do not wish to have their pictures featured in ads," Wilson explained.
Wilson pointed to Supreme Court precedent protecting anonymous donations made to groups that solely make independent expenditures in NAACP v. Alabama (1958). Then Justice Harlan's majority opinion stated, applying the First Amendment via the Fourteenth to Alabama, "We hold that the immunity from state scrutiny of membership lists which the Association claims on behalf of its members is here so related to the right of the members to pursue their lawful private interests privately and to associate freely with others in so doing as to come within the protection of the Fourteenth Amendment."
Wilson urged the Senate to reject the legislation, concluding, "House Democrats have been relentless in restricting and intimidating political speech for most groups while carving out explicit exemptions for special interests that favor their policies. It is up to the Senate to rise above these crony politics that guided the passage of the DISCLOSE Act, and instead to allow the First Amendment to stand, protecting political speech for all without regulation."
Disclosure is Overrated, by ALG News Senior Editor Robert Romano, June 21st, 2010.