Undisclosed Interests

Legislators fight corruption by silencing their critics.

In a 1996 law review article, Supreme Court nominee Elena Kagan warned that campaign finance laws "easily can serve as incumbent-protection devices, insulating current officeholders from challenge and criticism." The DISCLOSE Act, a speech-squelching bill supported by the man who nominated Kagan, is a good example.

President Obama and congressional Democrats say the DISCLOSE Act, which is expected to come up for a vote soon, is aimed at ensuring transparency and preventing corruption in the wake of Citizens United v. FEC, the January decision in which the Supreme Court lifted restrictions on political speech by corporations and unions. But the bill's onerous, lopsided requirements suggest its supporters are more interested in silencing their critics.

Consider the ban on independent expenditures by government contractors, under which thousands of businesses would be forbidden to run ads mentioning a candidate for federal office from 90 days before the primary through the general election. Although this provision is supposed to prevent the exchange of helpful ads for taxpayer money, it applies even to businesses that win contracts through competitive bidding. Furthermore, the ban does not apply to Democrat-friendly, taxpayer-dependent interests such as public employee unions and recipients of government grants.

Likewise, the DISCLOSE Act prohibits corporations from engaging in pre-election political speech if 20 percent or more of their equity is owned by foreign nationals. That provision would bar U.S.-based companies with foreign investors, such as Verizon and ConocoPhillips, from publicly addressing issues that affect their American shareholders and employees. Although the official aim is preventing foreign interference with U.S. elections, the ban would not apply to international unions such as the SEIU and the UFCW or to international activist groups such as Greenpeace and Human Rights First.

Even when corporations are allowed to speak, any communication that mentions a candidate during the covered period, including online material, could expose them to investigation by the Federal Election Commission (FEC) for unauthorized "coordination" with a political campaign. Despite all the rhetoric about big corporations drowning out the voices of ordinary citizens, the prospect of such an inquiry is most likely to intimidate small businesses and grassroots organizations with limited resources and legal expertise.

The "stand by your ad" statements required by the DISCLOSE Act also impose a substantial burden on the exercise of First Amendment rights. Under current law, a political ad has to include a statement indicating the sponsoring organization—say, the U.S. Chamber of Commerce or the American Civil Liberties Union. Under the DISCLOSE Act, both the organization's head and its "significant funder" would have to appear in the ad and take responsibility for it. According to the Center for Competitive Politics, these statements would consume one-third to one-half of the time in a 30-second TV spot.

The DISCLOSE Act's reporting requirements are likewise redundant, burdensome, and intimidating. Among other things, an organization's donors are presumed to support its political ads unless they specify otherwise, so their names must be reported to the government, raising the possibility of bullying or retaliation by politicians.

The anxiety and uncertainty created by the new rules would be compounded by the fact that they would take effect 30 days after the law is enacted, before the FEC would have time to issue regulations clarifying them. Opposing an amendment that would have postponed the effective date until January 1, Rep. Michael Capuano (D-Mass.) said he wants people to worry about a fine or prison sentence when they dare to speak ill of him.

"I hope it chills out all—not one side, all sides!" said Capuano. "I have no problem whatsoever keeping everybody out. If I could keep all outside entities out, I would."

Similarly, Sen. Charles Schumer (D-N.Y.), upon unveiling the bill, said "the deterrent effect should not be underestimated." For those who view nonpoliticians as meddlesome "outside entities" and criticism of incumbents as a crime to be deterred, the chilling effect of campaign finance laws is a feature, not a bug.

Jacob Sullum is a senior editor at Reason and a nationally syndicated columnist.

© Copyright 2010 by Creators Syndicate Inc.

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  • Some Guy||

    How is this supposed to get around Citizens United, exactly?

  • Johnny Longtorso||

    How is this supposed to get around Citizens United, exactly?

    By waiting for The One to pick The Right People for the court who understand that Our Betters have to control our speech For Our Own Good.

  • ||

    Support the Vacation for Congress Act. 11 months off with one session in August and no air conditioning.

  • Wegie||

    ...or pay!

  • π||

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  • mr simple||

    Well, we already got the alien acts back; it was just a matter of time before the sedition act.

  • BakedPenguin||

    Anything that helps Chuck Schumer remain in power is a bad idea.

  • Kolohe||

    He does make you miss the good old fashioned corruption of Al D'Amato

  • ||

    He makes me miss dueling as a method of remedying damage to reputation.

  • ||

    It depends what state you're in, apparently.

    http://en.wikipedia.org/wiki/Duel#United_States

  • James Traficant||

    Hey, I'm still around!

  • ||

    Anything that helps Chuck Schumer remain in power among the living is a bad idea.

    FIFY

  • BakedPenguin||

    IDK; zombie Schumer could be worse, although he'd be a slow moving zombie no matter what.

  • ||

    "Biiiiiiitch Tiiiiiits... biiiiiiitch tiiiiits..."

  • Nipplemancer||

    ever see him wrestle his way in front of a camera? he's already a fast zombie.

  • Tim||

    Zombie? No wonder he's anti-gun. Just prepping for the apocalypse.

  • WTF||

    Well, there's always decapitation and dismemberment to stop a zombie.

  • ||

    Very insulting article! You parce facts to deliver a biased perspective and seem to infer that we are too ignorant to see the real problem. The REAL problem is that we all suffer from a corrupting lobbying system that is unstoppable. The only hope we have of somewhat leveling the playing field is transparency. At least that way we could choose whether or not we support similar positions as those corporations by deciding whether or not we buy their products.

  • ||

    Very insulting post! Cronyism takes both a private and public partner to work. Stiffing free speech doesn't help anyone.

  • ||

    this one goes to 11!

  • Subsidize Me!||

    Transparency is indeed the key.

    Let's get a full, independent and accurate account of every cent collected in dues by the SEIU and compare it to the amount it has contributed to candidates.

    Furthermore, let's get a list of the people that wrote in the exemption that SEIU gets from this law, and see if any of them work for a candidate that recieved funds from SEIU.

  • ||

    So, your solution to lobbying is prevent everyone except the public employee unions from criticizing incumbents. Lovely.

  • ||

    I'm sorry, but I suppose I'm one of the few people who don't give two shits about who says what or why they are saying it. To me the issues should be debated on their face value, and any discussion of anything else is a distraction meant to create an us vs them mentality. Anybody who speaks politically has an agenda of some kind.

  • ||

    Sorry to reply to you rick, I am in agreement with you. I meant to reply to the guy above.

  • Colonel_Angus||

    You're right, lets get rid of the corrupting lobbying system by getting rid of government's power to favor those who lobby. If congress can't do anything, their would be no use for lobbyists.

  • π||

    No parce lay voo Francis.

    Say what?

  • ||

    The Disclose Act is basically a 21st Century version of the poll tax. The 15th Amendment guaranteed blacks the right to vote. So racist Southerners invented ways to make voting so onerous that blacks couldn't do it. Today, thanks to Citizens' United, the Constitution protects our right to incorporate and speak out about politicians. So, Democrats today, like Democrats of old, have decided to get around that by making doing so as difficult as possible. Oh sure you can exercise your 1st Amendment rights. But we need clean elections and need to make sure everyone knows who you are and that you are not "coordinating with a campaign". So, you better get a lawyer and be prepared for the possibility of years of expensive litigation and criminal charges if you violate so much as one sentence of our intentionally impenetrable regulations.

    The Democrats have a lot of experience in doing this kind of stuff to perpetuate Jim Crow. So, it is no surprise that this bill will be effective.

  • Rich||

    Astute observation.

  • d||

    Ditto. We need to call Dixiecrats out on their bullshit using veiled allegations of racism more often. They deserve it for the shit they tried to pull with both Pauls (in 2008 with Ron and with Rand).

  • ||

    But..but..they are the party that watches out for the little guy. I'm confused.

  • Brett L||

    If by "watches out for the little guy" you mean, they like to see small pictures of themselves in current almanacs of elected officials, then yes, they are that party.

  • Contrarian P||

    Actually I think it means watching out for the little guy to make sure he never gets a clue of how badly he gets screwed by the Democratopublican party.

  • ||

    "I hope it chills out all—not one side, all sides!" said Capuano. "I have no problem whatsoever keeping everybody out. If I could keep all outside entities out, I would."

    The best.

    The brightest.

  • ||

    That is the same Mike Capuano who celebrated his initial election by dropping an F-bomb on live radio during his victory speech. Classy guy, I tell you...

  • ||

    The mere fact that the legislation has a cutesy acronym like "DISCLOSE" is enough to make me hate it. They speak of "transparency". Heh. The only transparency I see is the transparent deceit of bills with names like "DISCLOSE" and "PATRIOT".

  • ||

    I have the same reaction to store or restaurants whose names are puns.

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  • Warty||

    I smirked the first time I saw "Pho King".

  • ||

    http://www.yelp.com/biz/pho-kim-long-las-vegas

  • ||

    I have the same reaction to Guy Fieri.

  • Ted S.||

    The other law names I despise are things like "Jane's Law", where "Jane" was some victim we're supposed to have sympathy for, but where hard cases make bad law.

    Every time I see one of those laws being discussed, I reflexively want to oppose it just on the princple of the matter.

  • Ted S.||

    The other law names I despise are things like "Jane's Law", where "Jane" was some victim we're supposed to have sympathy for, but where hard cases make bad law.

    Every time I see one of those laws being discussed, I reflexively want to oppose it just on the princple of the matter.

  • Ted S.||

    The other law names I despise are things like "Jane's Law", where "Jane" was some victim we're supposed to have sympathy for, but where hard cases make bad law.

    Every time I see one of those laws being discussed, I reflexively want to oppose it just on the princple of the matter.

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    I won't blame reason for the triple-post, but my satellite internet, which has a tendency to hiccup.

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  • ||

    LOL, now that dude looks like a real wanker!

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  • ||

    Hey, he's not wrong. That counts for something.

  • WTF||

    "Wanker" barely scratches the surface of adjectives appropriate and available to describe Chuckie "the Schmuck" Schumer.

  • Tim||

    America doesn't deserve such hardwork Senators and congressiods...

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  • ||

    Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

    It ain't that fuckin' hard. The response to speech you don't like is more speech. Incumbents, like the crowned heads of Europe when this was passed, hate the idea of somebody questioning their divine right to rule.

  • ||

    If they stop us from talking we just pull the tar and feathers out of mothballs. Maybe they'll like that much better.

  • Coeus||

    God, if only that were true. It's unfortunately apparent that we as a country lost the sack for it some time before 1913.

  • ||

    Remember, class: only the Right People should be able to buy their way into office.

  • Spartacus||

    Betwenn Rangel and Schumer, I have become ashamed of my first name. I think I'm going to change my name to Spartacus for real.

  • WTF||

    I say do it. That would be pretty cool.

    "No, really, tell me your name."

    "I am Spartacus!"

    "OK, we got a wise guy here."

    "No, really, I am Spartacus."

    "Riiiiiiiight."

  • ||

    You'll be a hit at the Blue Oyster Bar and Ramrods with that name.

  • ||

    And you've come to free the slaves or something?

  • Me Libertarian||

    It very bad to make person or company who pay for ad to say he pay.

    That means no freedom.

    I like freedom. Don't care if company buy votes. Freedom more important. All freedom the same.

  • Warty||

    Well, at least it's a new troll tactic. That's worth something, I guess.

  • Ragin Cajun||

    The cadence is very Sasquatch-like.

  • ||

    Voicing opinions is now the same as buying votes. Hopefully ACORN and the entire staff of the NYT will be imprisoned before nightfall.

  • Me Libertarian||

    Me like freedom.

    Except freedom to know who paid for ad.

    That freedom not important.

  • Contrarian P||

    When the "freedom" only applies to organizations likely to be critical of this administration and not to those, such as the unions, likely to support it, it's not much of a right to know, now is it? You really should actually try to make a cogent statement in support of your position as opposed to all this Cro-magnon grunting. Then again, maybe that does reflect the intellectual level of your arguments.

  • Me Libertarian||

    Freedom all the same. I say so all the time.

    I say and say and say. Free markets! Free people! People who take freedom away always bad! I always say.

    Except now. Now, no need have freedom to know who paid for ad.

    All of sudden, me not so into freedom.

    Me hope nobody notice how I say one thing then another.

  • Contrarian P||

    Sorry, we noticed you doing that a long time ago.

    It's sad that your attempts at cleverness only throw your profound ignorance of the libertarian position and of the proposed bill in question into sharp relief.

    For the last time, if your supposed "freedom to know who paid for ad" was in any way what this bill is about, you might have an actual point. The trouble is, this bill is actually about suppressing dissident speech by requiring multiple levels of compliance with regulatory minutiae, while allowing speech from sources considered acceptable by the current ruling party to be exempt.

    Are you functionally illiterate? That would explain your sentence structure and style, as well as your lack of grasp as to what this debate concerns. You sir, are an idiot, and a dishonest idiot at that.

  • Me Libertarian||

    All freedom is equal, but some freedom is more equal than others.

    It better to not know who paid for ad. Me no need that freedom.

  • voxpo||

    I get it. Anything you desire is a "freedom."

  • π||

    I had to chuckle a little when I saw your name.

  • ||

    We're sorry to hear of your head injury and wish you a speedy recovery. You'll be stuffing ballot boxes in Chicago again in no time!

  • cynical||

    Yes, adding obligations to speech serves to restrict it for those who find the obligations too onerous.

    Companies don't buy votes, anyway. Politicians do that with handouts, subsidies, and pork.

  • Me Liberal Progressive||

    It very bad for gobbamint to allow peeple to say what they want about holy elected leaders.

    They should not be allowed to say those things.

    I like big goobamint. Don't care if some people don't like what I like. What me want for everyonemore important. All results for everyone be the same. Gubbamint make sure all get same thing everywhere. Need more laws and regulations telling peeple what they can't do.

  • Me Libertarian||

    Me no care if company buy votes.

    Is free market!

    Me like. Always good.

  • Contrarian P||

    Pardon me, but perhaps you'd like to explain how exactly buying a television advertisement is buying votes? Perhaps we need to get on about banning earmarking and pork, since those are actual vote buying efforts.

  • Me Libertarian||

    When company sell food on TV, they say who they are.

    When company sell person on TV, they not say who they are.

    That is okay with me. Should not have to say! Should be free to not say!

    I like freedom!

  • Contrarian P||

    And perhaps you'd care to explain how my freedom is restricted in any way by someone not having to disclose their source of funding in a political advertisement? Or is it that you are too intellectually restricted to form your own opinion after analysis of the facts, rather than obtaining it through your television?

    Again you fail to recognize that the problem with this bill is that it restricts certain points of view while exempting others. You therefore continue to manifest yourself as a prolific clown shoe.

  • Me Libertarian||

    Me not knowing things is freedom too! Is freedom from knowing things!

    Me very, very free.

    Me not want to know who paid for ad. Me not care. Anybody who can pay should sell anybody they want and not say.

  • Contrarian P||

    "Me not knowing things is freedom too! Is freedom from knowing things!

    Me very, very free."

    Truer words were never spoken. I congratulate you, sir, on this (albeit brief) flash of awareness!

  • Me Libertarian||

    In end, I not want to know who paid for ad. Is not my business.

    Me like freedom to not say more than freedom to know.

  • MediaMatters.org||

    Sir, we'd like to hire you.

  • Barack Obama||

    He's on OUR payroll. Too late.

  • Contrarian P||

    Oh, and before I forget, way to dodge the question presented to you.

  • The Libertarian Guy||

    Our newest (?) troll is very persistent, Perhaps he would prefer a Ministry of Truth, bipartisan of course. *cough* harrumph

  • ||

    Voicing opinions is now the same as buying votes.

    Expressing your views (if they differ from the Official Position) is oppression.

  • MediaMatters.org||

    No, Mr. Brooks... opposing views - for the next couple of years, unless Obama wins a second term - are seditious.

  • ||

    Whether your left, right or center this is bad, bad news. Making it a crime to criticize politicians is a big step towards fascism.

  • ||

    Making it a crime to criticize politicians is a big step towards fascism.

    Oh, please. You can still criticize them all you want, as long as you do so in the privacy of your home.

    The 1A guarantees you the freedom to speak, get it? So talk all you want. There's nothing in there about "broadcasting" or "buying ads" or anything like that.

  • ||

    Exactly. You're free to say whatever you want from the inside of your prison cell.

  • π||

    You know what they say about your prison cell. "What is said in your prison cell stays in your prison cell."

  • The Libertarian Guy||

  • π||

    I applaud Jim Harper (and ARS Technica for waking up, they initially had articles touting the benefits of Net Neutrality causing me to create an account to leave comments asking why they wished to help destroy our last frontier allowing free speech), at least someone is finally getting it.

  • π||

    If an individual has held a political office for a period ranging from a few seconds to a year they should be sufficiently soiled (in addition to how dirty they already were prior to attaining that office) to be washed out of our political system.

  • π||

    The articles on this site are very good, but the comments are exceptional. Regardless of the politics of the commenter the vast majority are very intelligent, have great wit, and possess fully adequate communication skills.

    It's not difficult to recognize the various strains of political thought in this nation, or to understand we all basically hate each other.

    Generally speaking we must not be an incredibly learning able people. Is there a limit to the number of times we can fall for the divide and conquer ploy that has made us the subjects of our Dempublican rulers?

    Either way, once communication has broken down what remains is isolation or bitter bickering and there is little, if anything, to be learned from reading the resulting transcript that isn't already known.

    "Sasquatch-like" "Cro-magnon grunting"

    Bravo!

    Impressive execution, well played by all contestants.

    Nothing wrong with a tactful primitive approach, one with that certain je ne sais quoi. How could it be described, a rare Neanderthal elegance?

  • ||

    Sestak / Obama and bribery..........We demand justice!

    http://www.libertyaction.org/3.....D=24475774

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    THE POWER OF TREASON THROUGH SOCIALISM :

    42 B.C. from Cicero (via Jon Schaffer)

    "A nation can survive its fools, and even the ambitious. But it cannot survive treason from within. An enemy at the gates is less formidable, for he is known and he carries his banners openly. But the traitor moves among those within the gate freely, his sly whispers rustling through all the galleys, heard in the very hall of government itself. For the traitor appears not a traitor - he speaks in the accents familiar to his victims, and wears their face and their garment, and he appeals to the baseness that lies deep in the hearts of all men. He rots the soul of a nation - he works secretly and unknown in the night to undermine the pillars of a city - he infects the body politic so that it can no longer resist. A murderer is less to be feared."
    - Cicero, 42 B.C.

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