"The Senate has done nothing to remove the special carve-outs for certain organizations, despite the controversy over the House passage of this legislation."—ALG President Bill Wilson
July 26th, 2010, Fairfax, VA—Americans for Limited Government (ALG) President Bill Wilson today urged the Senate to reject the DISCLOSE Act that Wilson said "imposes tortuous regulations on corporations and non-profits while exempting media organizations, the NRA, AARP, the Sierra Club, unions and others."
"Senator Chuck Schumer cares less about disclosure and more about creating an unlevel playing field as it relates to campaign speech. The Senate has done nothing to remove the special carve-outs for certain organizations, despite the controversy over the House passage of this legislation. Congress still believes it has the power to hand out privileged speech licenses to the highest bidders," Wilson said.
"The Senate version of the bill still includes the blanket exemption for media organizations, which can say whatever they want about candidates, for or against, without any regulation or disclosure at all," Wilson said.
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 24.
"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.
Labor unions too 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 up to 20 days before an election and in excess of $1,000 within 20 days before an election, 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 in excess of the specified minimums to a company or organization that engages in express advocacy of a candidate, except for media organizations and other exempt entities, would have to have their names submitted to the FEC.
Wilson said the Senate was not consistently applying First Amendment protections. "The way news media is given a blanket protection is the standard that should apply to everyone, especially when it comes to independent expenditures. The First Amendment protects political speech from restriction, even if the backers of ads do not wish to have their pictures featured in ads."
Wilson pointed to Supreme Court precedent protecting anonymous donations made to groups that solely make independent expenditures in NAACP v. Alabama (1958). Then Justice John Marshall 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 concluded, "The Senate has an opportunity to reject the special favors that are being extended by the DISCLOSE Act, which is more about who is exempted and the advantage they will gain than who is regulated and restricted. These special carve-outs are precisely what have the American people in a complete uproar over Washington politics. Instead, it is time simply apply the First Amendment across the board and, with it, unregulated, unrestricted political speech for everyone."
Disclosure is Overrated, by ALG News Senior Editor Robert Romano, June 21st, 2010.