Craig Parshall, General Counsel


The Hidden Truth about the

July 28, 2010

This week President Obama voiced his urgent call for Congress to pass the Democracy is Strengthened by Casting Light on Spending in Elections (DISCLOSE) Act (H.R. 5175/S. 3628). The bill, which passed in the House and is still at the one-yard line in the Senate (see below), is a reaction to the Supreme Court’s rejection of the most recent “campaign reform” law passed by Congress.

The High Court recently ruled in the Citizens United case that Congress’ last attempt to address that subject infringed on the First Amendment rights of corporations (most of them small to medium sized ones) to voice opinions during elections. While several Supreme Court justices sat in front of him, President Obama harshly criticized that Supreme Court decision during his State of the Union address last January. Now comes the DISCLOSE Act, which has broken down along party lines. Democrats say the bill is necessary to avoid the corrupting influence of big money on federal elections. Republicans say that the bill is politically timed to intimidate grassroots citizen groups from participating (and voicing their discontent) in the all-important upcoming midterm elections, which some believe could reverse the fortunes of the Democrat-controlled Congress. NRB’s President & CEO Dr. Frank Wright has written to the Senate, voicing NRB’s strong objections to the DISCLOSE Act. And there is plenty to be concerned about:

Considering the way that the DISCLOSE Act performs a First-Amendment strip-search of the privacy rights of average Americans, it may as well be called the DISROBE Act. The force of federal law will dictate that every American who gives a mere $600 (that is a mere $50 per month) to an organization that makes certain communications during a federal election cycle will have their highly personal information made public on the website of that organization, including their name, home address, and the name of their employer. Will non-profit advocacy groups be regulated under this Act? All it takes for any group to come under the auspices of the draconian legislation is for that organization to make one public statement during an election year, where it contains one single reference (no matter how obscure or indirect) to any politician who is up for election. And that “reference” need not even relate to the election, nor must it endorse or disapprove of the candidate in order to trigger the DISCLOSE Act. It is incomprehensible how forcing public disclosure of the personal information of modest donors would have any bearing on the integrity of our federal elections. Even worse, average Americans would be easy targets for those who harbor resentment against the groups they support, especially when mean-spirited zealots decide to use that personal information for hostile purposes.

•The Act would mandate the scope of information that private, non-profit associations must divulge to their own members. That not only represents a violation of the First Amendment principle against “compelled speech,” but also signals a massive intrusion in the relationship between non-profit organizations and their supporters and members.

•The DISCLOSE Act would impose substantial civil and even criminal penalties for any non-profit or other advocacy group that makes a misstep. To say that this legislation would create a “chilling effect” on issue-advocacy groups is an understatement. The regulations are comprised of a byzantine mosaic of complex rules set forth in a bill that is 117 pages long.

•Speaking of disclosure, what I would really like the Congress to DISCLOSE about this bill are all the hidden quicksand traps that exist for unwary members of the public who might be sadly fooled into thinking that this legislation actually has something to do with improving America’s federal election process. 
Latest Legislative Update:
On Tuesday, July 27th, the U.S. Senate took a cloture vote on the DISCLOSE Act. It failed 57-41. This was a procedural vote that would have allowed Senate Majority Leader Harry Reid (D-NV) to bring the DISCLOSE legislation up for a final Floor vote immediately. Any cloture vote requires 60 votes to pass, but the failure of the cloture motion does NOT signal that the DISCLOSE Act has died. In fact, Leader Reid realized just before the cloture vote was taken that he did not have the requisite 60 votes, so he voted against it to give himself the procedural leverage to bring the legislation to the Floor at a later time. Capitol Hill Insiders tell NRB that this was a significant victory for those grassroots organizations who have vocally opposed the DISCLOSE Act in recent weeks, but the battle is not over. Those who support the DISCLOSE Act are working very hard to gain the few additional votes needed to reach a 60-vote majority and end any Republican filibuster. NRB will alert you to any action on this legislation in the next several months.