Ben Boychuk and Pia Lopez

Head to Head: Should Congress approve the DISCLOSE Act on campaign gifts?

Published: Thursday, Jul. 19, 2012 - 12:00 am | Page 15A
Last Modified: Thursday, Jul. 19, 2012 - 7:29 am

THE ISSUE: A U.S. Supreme Court decision in 2010 allowed corporations, unions and other groups to spend unlimited amounts on political campaigns. The DISCLOSE Act (S. 3369) would require organizations to report donations of $10,000 or more to the Federal Election Commission within 24 hours starting in 2013.

Should Congress approve the DISCLOSE Act on campaign gifts?

Pia Lopez: Yes

We see firsthand this election cycle how unlimited contributions have the potential to corrupt the political process. Rather than the "free speech" we celebrate in the First Amendment, we've got "bought speech" where those with the most money get the biggest megaphones to drown out other voices.

We arrived at this juncture because five justices of the U.S. Supreme Court in the Citizens United ruling overturned a century of law to allow corporations and unions to give unlimited amounts of money to third-party groups – including shadowy political groups set up as tax-exempt "social welfare" 501(c)(4) nonprofits – to finance ads expressly advocating the election or defeat of candidates in federal elections.

Justice Anthony Kennedy, who penned the decision, believed "prompt disclosure" would be the rule and would "provide shareholders and citizens with the information needed to hold corporations and elected officials accountable for their positions."

That hasn't happened. Two-thirds of spending by outside groups on political ads so far, according to Campaign Media Analysis Group, has come from tax-exempt nonprofits not subject to disclosure rules.

The DISCLOSE Act would change that.

The National Rifle Association falsely claims the bill would "require organizations to turn membership and donor lists over to the government." It would not affect organizations that rely on $25, $100 or $500 membership fees.

All a group like the NRA would have to do is keep a separate account for political spending, disclosing $10,000-and-over donors. That's as it should be.

Senate Minority Leader Mitch McConnell, R-Kentucky, who is leading Republican opposition to the bill, claims disclosure is "nothing less than an effort by the government itself to expose its critics to harassment and intimidation … ."

But as U.S. Supreme Court Justice Antonin Scalia wrote on disclosure of petition signatures (Doe v. Reed, 2010): "There are laws against threats and intimidation; and harsh criticism, short of unlawful action, is a price our people have traditionally been willing to pay for self-governance."

People who spend large sums of money to influence an election should be open to scrutiny and criticism.

Republicans senators should end their filibuster and support disclosure of unlimited spending. The mixture of unlimited spending and secrecy is toxic.

And I'd like to see Congress and the president go further. As President Theodore Roosevelt said in 1905 : "All contributions by corporations to any political committee or for any political purpose should be forbidden by law; directors should not be permitted to use stockholders' money for such purposes."

And it's not just corporations that need limits. Sheldon Adelson, a Las Vegas casino owner who says he has already given $36 million and promises $35 million more, told Forbes Magazine: "I'm against very wealthy people attempting to or influencing elections, but as long as it's doable, I'm going to do it."

The real task is to figure out how to set reasonable, constitutional limits on all contributions and spending to prevent corruption of the election process.

Pia Lopez is an editorial writer at The Bee.

Ben Boychuk: No

Disclosure is a fine thing. The DISCLOSE Act, on the other hand, is a regulatory rat's nest. It's one more way for incumbents to use the administrative state's heavy hand to discourage political speech.

As Sen. Chuck Schumer, D-New York, explained when he introduced an earlier version of the bill, "the deterrent effect should not be underestimated."

So DISCLOSE might best be understood as the censors' revenge for the greatly misunderstood Citizens United decision.

Contra Pia, the Supreme Court did not overturn a "century of law" in a case that other, less levelheaded liberals have likened to the court's infamous Dred Scott ruling.

The justices didn't touch the 1907 federal law that forms the foundation of the bloated campaign-finance regime we're burdened with today. Corporations still can't give money directly to political candidates. Individual donations to candidates remain capped.

And the court didn't lay a finger on the 1972 Federal Election Campaign Act, which requires campaigns, political parties and certain politically active groups to – ahem – disclose the names, addresses and employment information of their donors.

In fact, DISCLOSE attempts to solve a "problem" – unlimited independent expenditures funded by anonymous donors – created as a result of all of the rules the court left untouched.

The First Amendment is a real impediment for these self-styled tribunes of the people.

"I believe there ought to be limits because the First Amendment is not absolute," Schumer has said. "No amendment is absolute. You can't scream 'fire' falsely in a crowded theater. We have libel laws. We have anti-pornography laws. All of those are limits on the First Amendment."

True. All true. And beside the point.

But then Schumer revealed how little he understands what the First Amendment was written to protect. "Well, what could be more important than the wellspring of our democracy? And certain limits on First Amendment rights that if left unfettered, destroy the equality – any semblance of equality in our democracy – of course would be allowed by the Constitution."

Wrong, wrong, wrong.

The First Amendment was written foremost to protect the sort of political speech that makes it impossible for the Schumers of the world to enact their agendas unopposed.

If really we wanted to foster "democracy," we'd tear down the entire ridiculous campaign-finance edifice, fire four-fifths of the FEC's lawyers and compliance officers, and start from scratch.

The rule would be simple: Give as much money as you like to any candidate you want, but you have to disclose it immediately. Remove the barriers and let voters judge for themselves who's bought and who's not.

Ben Boychuk is associate editor of the Manhattan Institute's City Journal (www.city-journal.org/california)

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