-By Warner Todd Huston
On June 24 the House of Representatives passed by a bare minimum number of votes the DISCLOSE Act, a law that is supposed to be a new effort to get around the recent US Supreme Court decision that struck down parts of Congress’ campaign finance law. Bare minimum or no there is no doubt that this new law is an unconstitutional mess that unfairly limits the free political speech of some Americans while giving an unfair advantage to unions and certain lobbyists — lobbyists including the National Rifle Association and Big Labor groups such as the AFL-CIO and the SEIU.
The DISCLOSE Act (full name, Democracy is Strengthened by Casting Light on Spending in Elections Act) was passed through the House by a 219 to 206 vote with only two Republicans voting in favor and 36 Democrats voting against. The two Republicans that voted in favor were Mike Castle of Delaware and Joseph Cao of Louisiana.
So what is this law supposed to do? For one thing the law would require “special interest group officials to physically appear at the end of campaign ads they sponsor, acknowledging their campaign contributions.” It would also require that advocacy groups detail on their public websites every campaign they’ve donated to.
But, as it turns out, Democrats excluded some of the biggest spenders on political ads and campaigns in the country, most of them their patrons. In a manager’s amendment the Democrats excluded any organization that has over 1 million members. That leaves Big Labor free and clear of these new disclosure rules. It also leaves the National Rifle Association free of the new requirements.
Note: My apologies for calling this the DISCLOSURE Act instead of the Disclose Act. It was absentminded of me. Text has been corrected to the proper name of the bill.
And this is precisely what makes the whole thing unconstitutional. It is true that Congress has made rules requiring disclosure of campaign donations and it is also true that the courts have declared it constitutional. But those laws were all levied equally on everyone. The laws affect everyone that donates a certain amount of money and higher, for instance. This law treats some donations as necessary of disclosure while affording other donations the luxury of secrecy.
The Constitution of the United States has always been conceived as one that affects everyone equally. But if the courts let this law stand, then we will be solidifying into law the concept that Congress can make laws that discriminate against some Americans while giving other Americans more freedom. This is a dangerous precedent to set.
One thing is sure, disclosure of campaign donations have been used by advocacy groups for opposition research. California’s recent pro-traditional marriage vote, for instance saw disclosure of donors put into the hands of groups that used the lists to track down and personally attack individual donors. In California such donor lists left folks that donated to protect traditional marriage for religious reasons open to personal attacks by gay advocacy groups.
The fact is that disclosure can go too far and have unintended consequences and this should also be taken into consideration and be weighed for effect.
For his part Republican Leader John Boehner is already denouncing the law.
With this misguided bill, Democrats would restrict free speech and violate the First Amendment. But not for everyone. This bill would muzzle small businesses but protect labor unions. It allows the Humane Society to speak freely, but not the Farm Bureau. It would protect the AARP’s rights, but not 60-Plus. And lastly it would protect the National Rifle Association but not the National Right to Life. The NRA is carved out and gets a special deal in this bill. The NRA is all about protecting the Second Amendment, but apparently its leaders don’t care about protecting the First Amendment. That’s very disappointing.
This is a potentially dangerous piece of legislation, but it isn’t law yet. The U.S. Senate has to pass it and then the president has t sign it. There is still time to defeat this unconstitutional favoritism for Big Labor and other Democrat constituencies (and the NRA, curiously enough — politics does make strange bedfellows at times).