By Cleta Mitchell
The cynical decision this week by House Democrats to exempt the National Rifle Association from the latest campaign finance regulatory scheme is itself a public disclosure. It reveals the true purpose of the perversely named Disclose Act (H.R. 5175): namely to silence congressional critics in the 2010 elections.
The NRA carve-out reaffirms the wisdom of the First Amendments precise language: Congress shall make no law . . . abridging the freedom of speech.
Congress cant help itself. Since 1798 with the Alien and Sedition Acts incumbent politicians have yearned for legal duct tape for their opponents mouths. The Disclose Act is a doozy of a muzzle.
For its part the NRA -- on whose board of directors I serve -- rather than holding steadfastly to its historic principles of defending the Constitution and continuing its noble fight against government regulation of political speech instead opted for a political deal borne of self-interest in exchange for neutrality from the legislations requirements.
In doing so the NRA has sadly affirmed the notion held by congressional Democrats (and some Republicans) liberal activists the media establishment and at least for now a minority on the Supreme Court that First Amendment protections are subject to negotiation.
The Second Amendment surely cannot be far behind.
Since
the courts January decision in
Citizens United v. Federal Election Commission that corporations cannot be constitutionally prohibited from making independent candidate-related expenditures Democrats have been hyperventilating at the notion that corporations might spend millions of dollars criticizing them.
To foreclose that possibility the Disclose Act would impose onerous and complicated disclosure restrictions on organizations that dare to engage in constitutionally protected political speech and on corporations that dare to contribute to such organizations.
Democrats would effectively neuter the courts decision by requiring the names of multiple donors to be recited in ads (thus shrinking the time spent on actual speech)
requiring the CEO of a corporate donor to personally appear in campaign-related ads expanding the coverage period to virtually the entire election year and including myriad other rules that the
NRA described last month as byzantine and an arbitrary patchwork of reporting and disclosure requirements.
The NRAs wheel-squeaking bought it an exemption from those requirements. Tea Party organizations arising spontaneously since 2009? Out of luck. Online organizations with large e-mail followings but perhaps no formal dues structure?
Forget it.
Receiving less attention than the NRA carve-out but no less cynical is the bills sop to organized labor: Aggregate contributions of $600 or more would be disclosed. Why start at $600? Why not $200 or say $500? Because most union members dues aggregate less than $600 in a calendar year and thus members contributions to labors campaign-related spending wouldnt need to be disclosed ... even to the union members whose dues are spent for political purposes.
In
Citizens United the court held that the First Amendment doesnt permit Congress to treat different corporations differently; that the protections afforded political speech arise from the Constitution not Congress. Otherwise it would be tantamount to a congressional power to license the speech of some while denying it to others.
The
NRA carve-out is a clear example of a congressional speech license.
The ostensible purpose of the legislation is benign disclosure upheld in
Citizens United as permissible under the First Amendment. Even conservative Justice Antonin Scalia has expressed skepticism about the constitutional infirmity of disclosure requirements in another case argued this term; Scalia intoned in oral argument that running a democracy takes a certain amount of civic courage.
Thats true.
Indeed the law upheld in
Citizens United requires all donors to candidate-related expenditures to be publicly disclosed to the FEC in a timely manner.
But the Disclose Act isnt really intended to elicit information not currently required by law. The act serves notice on certain speakers that their involvement in the political process will exact a high price of regulation penalty and notoriety using disclosure and reporting as a subterfuge to chill their political speech and association.
It is only disclosure say the authors. And box-cutters are only handy household tools . . . until they are used by terrorists to crash airplanes.
This is not just disclosure. It is a scheme hatched by political insiders to er
adicate disfavored speech. There is no room under the First Amendment for Congress to make deals on political speech whether with the NRA or anyone else.
Cleta Mitchell is a partner at Foley & Lardner who works in campaign finance law and is a member of the NRAs board of directors.
