DISCLOSE Act promotes incumbent security, not transparent elections

Font Size:

What’s more important than putting together a new budget for the federal government? If you’re one of the 219 representatives whose vote secured the passage of the so-called “DISCLOSE Act” in the House last Thursday, the answer is simple:  providing incumbents with job security.

Foregoing their responsibility (for the first time in more than three decades) to pass an annual budget resolution, House leaders instead worked doggedly to make sure that the Act – which will now be taken up by the Senate – stays on schedule to become law in time for November’s elections. DISCLOSE is short for “Democracy is Strengthened by Casting Light on Spending in Elections.” This euphemistic-sounding title belies what the legislation really does:  bans some corporations (for example, those that contract with the government) from speaking entirely and makes it much harder for other corporations – including non-profit corporations – to speak by burying them under layers of bureaucracy while requiring the disclosure of their donors.

For the overwhelming majority of corporations who can’t afford to hire all the lawyers and accountants that are needed to cut through the reams of red tape, DISCLOSE amounts to a de facto ban on speech.

These restrictions are a blatant attempt to do an end-run around the Supreme Court’s recent decision in Citizens United v. FEC, in which the court held that the government may not censor corporations’ political speech. The DISCLOSE Act’s supporters know, and expect, that the law will discourage many corporations from speaking up in this year’s elections. Senator Chuck Schumer of New York, who co-authored the bill with Representative Chris Van Hollen of Maryland, has admitted as much, noting that the act will make corporations “think twice” before speaking out. Indeed, as he unveiled the act, he declared that, “The deterrent effect should not be underestimated.”

Sen. Schumer and Rep. Van Hollen are clearly worried that lots of new political speech by corporations will threaten the reelection of incumbents this fall. Indeed, while the two lawmakers are only concerned about the re-election prospects of their fellow Democrats, incumbents of all political stripes – already unnerved by the most recent round of primary election – can’t be thrilled by the prospect of lots of corporations (as well as unions) speaking out against them.

Unsurprisingly, supporters of the DISCLOSE Act haven’t promoted it to the public as an incumbency-protection measure. Instead, they say that the act is needed because Citizens United gave corporate “special interests” unprecedented power to influence the political process. But it’s always been true that large and politically powerful corporations have, by hiring armies of lobbyists, successfully tilted the legislative process in their favor – often in political deals that come at the expense of their competitors and the public at large. These deals benefit incumbents because they increase their power by expanding the government’s control over the economy.

This is business as usual in D.C., and Citizens United didn’t make it worse. In fact – and this is what incumbents are really worried about – the decision actually made this practice of influence peddling harder.  This is because Citizens United freed corporations that are harmed by it – usually because they, like the vast majority of corporations, have neither the resources nor the ability to have an effective lobbying presence in D.C. – to speak out directly to the public against the re-election of politicians who engage in it.  For example, before Citizens United, it would have been illegal for a small American car company to run political advertisements against politicians who supported bailing out General Motors.

A company that owns shrimping boats in the Gulf of Mexico could not have run advertisements right before an election that expressed disapproval of politicians who fought against safety restrictions on offshore drilling for companies like BP. And, because many taxpayer groups are organized as non-profit corporations, they would have been prohibited from advertising against the re-election of politicians who voted for massive spending increases.

Unsurprisingly, incumbents preferred this pre-Citizens United state of affairs, in which they could cooperate with politically powerful corporations and ignore the rest -which is why they’re hoping the DISCLOSE Act will restore it.  As noted above, the bureaucratic burdens the bill imposes will make it difficult, if not impossible, for most corporations to speak during election season about incumbents’ faults to the public – a public that is increasingly receptive to calls for ending incumbents’ practice of influence peddling by ending their political careers.

For that reason, the DISCLOSE Act isn’t a bold attempt to diminish the influence of “special interests” in Washington.  Instead, it’s simply the political establishment’s attempt to cling to power – power that it fears will slip away come November.

Thus, it makes perfect sense that House leaders, instead of tending to the budget, worked so hard to get the DISCLOSE Act passed.  After all, what’s the point of figuring out what to do with taxpayers’ money if you haven’t made sure you’ll be around to spend it?

Bert Gall is a senior attorney at the Institute for Justice, which litigates nationwide against restrictions on free speech.  Joseph Gay is a Constitutional Law Fellow at the Institute.