June 21, 2010 1:16 PM
The ultimate failure of the DISCLOSE Act, which actually originally possessed some bipartisan support, is a classic Washington tale of what happens when too many cooks spoil the broth.
This story had it all, the timeless attempt to regulate money in politics, the strangest of bedfellows (Chris Van Hollen (D-MD), a high ranking Congressional Democrat, striking a deal with the conservative National Rifle Association), intense political pressure from stakeholders to tailor the bill to their own interests, and even a public and much documented inter-federal branch showdown at the President's most recent State of the Union address.
Senators John McCain and Dennis Feingold worked tirelessly for years to alter campaign finance laws (which they finally accomplished with the passage of BCRA), and the lingering result of their labors is general distaste for both lawmakers from their respective parties. McCain, the 2008 nominee of the Republican Party, has suffered tireless attacks from the right for his work on that...
With all the kerfuffle around the DISCLOSE Act, it is important to remember why this measure is necessary in the first place. 8 in 10 Americans disapproved of the Supreme Court in Citizens United v. FEC which opened up virtually bottomless corporate and union treasury funds for spending on political advertising. Much of the new influx of money is expected to be laundered through shady groups with patriotic names or even trade associations. The goal for many campaign finance reform opponents is complete anonymity for donors – no fingerprints “Swift Boating” if you will. Below are recent examples plucked from the headlines.
A third-party group, the Committee for Truth in Politics, is out with an ad blasting the House’s "Wall Street Reform and Consumer Protection Act." The group, which has no Web site and has made no disclosures to the Federal Election Commission, was created by a North Carolina GOP operative, according to National Public Radio, and is represented by lawyer James Bopp, who sued the FEC on the grounds that the group...
DISCLOSE - "Democratic Incumbents Seeking to Contain Losses by Outlawing Speech in Elections" - is one of the most indefensible pieces of legislation ever to come out of Washington, and that's saying something. The NRA carve out merely illustrates that DISCLOSE is not really about "good government" or even "disclosure." The exemption for one of Washington's most powerful interest groups - now expanded slightly to cover another of Washington's most powerful interest groups, Sierra Club - in a bill claimed to be necessary to limit "special interest influence," make it highly likely that the law would not even pass the most lenient standard of legal review, "rationale basis," when it is challenged in Court, as it surely will be should it pass. So the NRA can speak, but the Gun Owners of America can not. This, we're told, is the price we have to pay for reform. Hogwash. We have advanced now from "crony capitalism" to "crony freedom" - if you are powerful enough, or play golf with the right guys, you get spee...
To state the proposition is to refute it: “Is it appropriate for Democratic Leaders to exempt application of a bill to a powerful special interest in order to secure passage of a bill designed to curb the influence of powerful special interests in Washington?” Of course not.
The principal objection many have to the DISCLOSE Act is that it is advertised as permitting constitutionally protected speech while requiring transparency as to the identity of the speaker, when it is, in reality, partisan political legislation designed to disincentivize constitutionally protected political speech by a disfavored group (large corporations). Buying off a powerful political adversary to secure its acquiescence does little to convince us that those objections are unfounded. The philosophical defect this deal exposes is that constitutional freedoms of expression and association belong to everyone - not just favored groups and the politically powerful. Any legislation straying from this principle is immediately suspect.
As Supreme C...
It sounds like the deal-making this week on the DISCLOSE Act could cost the bill’s sponsors some votes, but we’ll see. I’m certainly understanding of how deals get struck to placate critics and advance legislation, although I think the exemption they created is very narrow and won’t apply to very many organizations.
I think the volume of criticism and concern about the bill has been pretty loud, so I would like to see the bill’s sponsors sit down and really sift through the full range of concerns people have with this bill before they rush it to the floor. You know, they had to significantly rework this bill in committee to assuage some objections and now they’re cutting another deal. That tells me there were some provisions in the original bill that perhaps its authors had not fully considered. I think part of putting forth good legislation is listening to the criticism, weighing the unintended consequences and making sure you’ve got it right. So we know House leaders are listening and have been willing to make some changes, but t...
Is the NRA exception ideal, or pretty? No. Is it likely to complicate the defense of the DISCLOSE Act when it is challenged? Yes. But, is it worth dropping support of the legislation altogether? No.
I don't claim the current version of the legislation is perfect. It has some parts that seem complicated at first blush. For example, sorting out the circumstances when an organization would have to report that a transfer is subject to disclosure will take some clarification by the "plain English" writers in the FEC's Information Division. But this, and similar questions, can and will get answered reasonably quickly.
But the fact that certain aspects of DISCLOSE will exempt certain organizations should not be deemed surprising or unusual. The current campaign finance law makes many distinctions. It regulates corporations and unions in a way different from partnerships and most LLC's. It regulates media entities (including Citizens Action itself, according to a recent advisory opinion of the FEC) in a way different from other corporations. It regulat...
The Supreme Court's Opinion in Citizens United makes it clear that the Court believes disclosure of the sources of funding for political ads during election campaigns is not only constitutional but desirable. Justice Kennedy stated that disclosure of the sources of funding of political advertising "provide[s] the electorate with information" and "insure[s] that the voters are fully informed about the person or group who is speaking." Eight of the nine Justices joined this portion of the Court's Opinion. This principle is embodied in the disclosure provisions of the DISCLOSE Act currently before Congress. Now that the Supreme Court has given us unlimited corporate (and union) political speech in federal elections, Congress should do its job and give us full disclosure of the sources of that speech. Groups who have opposed such disclosure now attack the new provision exempting certain donor reporting for huge , long-established, national organizations such as ...
The Citizens United decision was one that literally terrified me. The thought that corporate entities could spend in an unlimited fashion and hide it to influence our democratic process became a stark reality the second the Supreme Court issued its egregious ruling. Through the process of the creation of the DISCLOSE Act, U.S. PIRG has applauded the quick, initial response by Senator Schumer and Representative Van Hollen. The sponsor’s ability to move in lockstep to address the unpopular overreach by the courts in Citizens United vs. FEC has been masterful. However, as much as PIRG strongly supports a response to the Supreme Court we feel that with the new exemption for the NRA, the bill has gotten it seriously off track.
The irony is obvious-- a bill with the initial purpose of disclosing corporate contributions to elections, now exempts from disclosure corporate contributors to one of the nation’s biggest spenders in American elections.
However, in addition to the creation of a two-tiered system for political speakers – one for the NRA and one...
I personally am not a fan of the exemption and not a fan at all of the Supreme Court’s decision but that is an issue for another topic. As far as the exemption goes, I understand the politics behind it but feel that the House leaders opened themselves up as unnecessary targets to the claim that they are pawns of special interests. Granted the NRA can mobilize constituents very well but if this bill is meant to correct the problems with the Supreme Court’s decision doesn’t it lose credibility when you start exempting groups out of the bill?
To me this states that there are different rules for different players and that to me is the biggest problem with the Court’s decision in the first place. Do corporations, as an entity, have the same rights as an individual does? Maybe their employees and shareholders do but the corporation itself, I don’t think so. By allowing this, you create a greater divide between the people and their ability to have their individual voices heard compared to the flow of cash that a corporation can throw at an issue. ...
Carving out an exemption for the NRA to the individual donor disclosure requirement of the DISCLOSE Act (H.R. 5175) is a strategic decision by congressional leaders to get the measure approved by the House. It is a troubling decision, but the carve-out poses little damage to the overall objectives of the bill.
The legislation still provides what the public desperately needs in the wake of the Supreme Court’s disastrous Citizens United decision: full disclosure of corporate and wealthy funding sources behind express advocacy ads and electioneering communications; extends the electioneering communications window to cover most of an election period; and applies some restrictions on major government contractors and foreign entities in financing campaign ads.
The NRA (and AARP and Humane Society) will still have to disclose in their ads that they are financed by the NRA and report to the FEC how much the NRA spends on electioneering activity. The head of the NRA will have to do a stand-by-your-ad disclaime...
Campaign finance legislation, known as the DISCLOSE Act is expected to come up for a vote in the House this month, after Democrats struck a deal with the National Rifle Association to exempt them from the new disclosure rules. What is your reaction to the deal? Will this make the bill harder to pass Congress? Should the NRA have been exempted? Separate from the deal, would the bill achieve the goals its co-sponsors have outlined, which is to prevent corporations and unions and other third parties from spending so much money in the election process that it distorts our democracy?
10 responses: Cameron Lynch, Meredith McGehee, Bradley A. Smith, Stefan Passantino, John H. Graham IV, Scott Thomas, Trevor Potter, Lisa Gilbert, Dave Wenhold, Craig Holman
I am in full support of transparency in lobbying and the need to address the perception among some members of the public that public officials are unduly influenced by special interests. But it needs to be done in a way that is in line with the U.S. Constitution. Although this bill may be a good faith effort, its provisions appear to be in violation of the First Amendment rights to freedom of speech and the right to petition the government. As such, it would be struck down.
In my view, these reform efforts fuel the inaccurate perception that lobbyists somehow drive the conversation in Washington. The truth is that Members of Congress make decisions on issues based on what is right for the interests of their constituents. Period. Members are accountable at every election to the voters of their state or district – I can assure you that it is the voters they care about. Anyone who has run as a candidate in a political contest knows this very well. The American people hold you accountable for your positions. To suggest that a Member of Congress would make a deci...
Recognizing that the lobbyist bashing seems to poll really well, the legislation seems to promote the idea that Members of Congress and their staffs lack any ability to discern reasonable policy arguments from specious or poor ones and they need rules to protect them from hearing from a portion of the public. I think it is offensive not only to those who would like their policies to be given a fair hearing but also to those who are more than capable of receiving information and making an informed decision.
The idea is reminiscent of the failed term limit movement that swept the country years ago. As with term limits, where voters have the ability to exercise their choice so too do elected officials and staff on the Hill, or in the Administration. They have the complete ability to disagree with the views presented by a lobbyist and take an opposing position.
First, a disclaimer. I write this as a former Hill staffer who left the Hill (many years ago) to lobby. In my case, I lobbied for a nonprofit that worked to strengthen the revolving door laws (we were successful in improving them). Also, while on the Hill, I made too little salary to be covered by the statutes. But my personal experience no doubt influences how I think about the revolving door.
Helping to obtain favors and preferential treatment from high officials on behalf of others for a fee used to be called “influence peddling.” But that moniker assumed the peddler was in government.
The more benign sounding term “revolving door” is a description of the same practice except that the peddler is outside government and using his or her connections to wield personal influence and political power (including directing campaign contributions) to do pretty much the same thing.
So are the new restrictions proposed by Senator Michael Bennet (D-CO), including a lifetime ban for former Members of Congress, the correct policy resp...
While I certainly agree that there should be rules in place that discourage the granting of reciprocated favors or privileges between elected officials and the private sector, I don’t know how realistic or wise it is to put a permanent ban on members of Congress ever working as registered lobbyists. I’m confident that Senator Bennet has the best of intentions, but I worry that an extreme or heavy-handed approach to this practice will only further encourage individuals to go “underground” in their advocacy work. There are a lot of disclosure and reporting requirements on the books for registered lobbyists; there aren’t any for former members of Congress or Congressional staffers who get paid to share their insiders’ perspective and expertise in K Street boardrooms.
Let’s be clear about what this proposal does: it doesn’t stop lobbying, and it doesn’t stop lawmakers leaving the Hill from entering the employment of a lobbying firm. What it does is offer further discouragement to register as a lobbyist and adhere to all of ...
In response to Bara Vaida
When Horse Trading Gets Tricky
By Cameron Lynch
President, The Lynch Group, LLC