06.21.2010 0

Disclosure is Overrated

By Robert Romano

Last week, after being on the fast track, campaign speech restrictions on corporations and not-for-profit organizations became sidetracked in the House of Representatives by Congressional Democrats, prompting House Speaker Nancy Pelosi to pull the bill off the floor prior to any vote.

Ironically, the legislation, the so-called DISCLOSE Act, was not delayed because it violated First Amendment rights to freedom of speech, of the press, and of association. It was held up because it did not violate those rights enough.

Specifically, so sleazy was the exemption granted to the National Rifle Association, that the Congressional Black Caucus withdrew its support. They want the NRA to disclose its donors, too, information the organization has sworn to protect.

Conservative groups blasted the NRA exemption as well, but not because they want the campaign restrictions extended to them, but because they believe all groups should be exempted. For them, the carve-out harkened back to the ObamaCare Cornhusker Kickback and Louisiana Purchase, when senators were granted special benefits in return for supporting the legislation they otherwise would not have.

Of course, removal of the NRA carve-out will not stop other exemptions. For example, labor unions will still have an exemption since only aggregate contributions of over $600 would be disclosed — most union dues are less than that.

Another archaic carve-out that remains intact are those granted media organizations. Under the 1971 Federal Election Campaign Act, newspapers, broadcasting stations, magazines, and other periodicals that publish endorsements are exempted from any disclosure or regulation at all by the Federal Election Commission.

According to 2 USC 431 (9) (B) (i): “The term ‘expenditure’ does not include any news story, commentary, or editorial distributed through the facilities of any broadcasting station, newspaper, magazine, or other periodical publication”. This media exemption to campaign regulation is reinforced in the DISCLOSE Act’s language on page 22.

As Americans for Limited Government President Bill Wilson noted, “They don’t have to disclose donors. They have no limits on what they can say, or when they can say it. That’s the way it is supposed to be for everybody.”

Indeed, “freedom of the press” was never intended to apply to any select group, including The Press. It meant the freedom to operate the printing press to publish political opinions without any abridgement by government for any reason.

That includes an unwillingness to disclose donors backing such speech. Under the terms of the Act, companies and organizations — except for traditional media outlets, unions, the NRA, and maybe even AARP and the Humane Society — are not allowed to say who they support in elections unless they disclose who paid for the message. That’s an uneven restriction of a right that is supposed to be absolute.

This is not about direct donation to candidates, campaigns, or political parties. This is about independent expenditures that are not made in coordination with campaigns. The Supreme Court has already ruled that independent expenditures cannot be barred in the Citizens United ruling.

The same principle should apply to anonymous donations made to groups that solely make independent expenditures, as it did in NAACP v. Alabama (1958). Then Justice Harlan’s majority opinion stated, applying the First Amendment via the Fourteenth to Alabama, “We hold that the immunity from state scrutiny of membership lists which the Association claims on behalf of its members is here so related to the right of the members to pursue their lawful private interests privately and to associate freely with others in so doing as to come within the protection of the Fourteenth Amendment.”

Because of the ruling, several types of organizations do not have to disclose donors. However, they are still barred from engaging in electioneering — except for traditional media outlets. A similar case as was made by the NAACP can be made for any group of individuals wishing to remain anonymous in stating their preferences for a federal election.

Which is the way it should be. Disclosure of donations made to organizations that only make independent expenditures is overrated.

After all, there is no emergency or bribery crisis of elected officials that has ever emerged over editorial endorsements by newspapers or any other media outlet, which have long been exempted from disclosure. Yet we presume all other anonymous speech is malevolent. The law supposes that anonymous independent expenditures by everyone except for media could give the appearance of impropriety.

It’s hard to believe such an absurd double standard has lasted this long. The solution is not to equally apply labyrinthine, onerous regulations on all organizations; it is to remove them for everybody. There should be unlimited, unabridged political speech about elections — without exception.

Robert Romano is the Senior Editor of ALG News Bureau.

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