Former FEC Commissioners: Free Speech Under Politically-motivated Assault by New Bill

Eight former Federal Elections Commissioners today blasted proponents of a Senate bill that would "blunt" the Citizens United v. FEC Supreme Court decision, which allowed unions and corporations to spend freely on political advertisements.

Writing in the Wall Street Journal, the Commissioners called the bill "unnecessary, partially duplicative of existing law, and severely burdensome to the right to engage in political speech and advocacy." They also accused Sen. Chuck Schumer, D-NY, and Rep. Chris Van Hollen, D-Md. -- sponsors of the Senate and House legislation, respectively -- of "partisan motives" designed to satiate the Democratic Party's labor union backers.

While some prominent news organizations, including the Washington Post, have raised serious concerns about the  legislation, other ostensibly (or at least presumably) pro-free speech news outlets are either silent or, in the case of the New York Times, simply parrot Democratic talking points and give critics of the bill a mention, though not a voice, and make sure to dub them "the business lobby."

The op-ed is the most scathing attack on Democrats' attempts to stifle political speech by overturning a decision allowing corporations and unions to spend money on political advertisements within 60 days of a general election or within 30 days of a primary. The Court handed down its decision in January.

The Commissioners, who together "served on the FEC at all times from its inception in 1975 through August 2008," offer a number of objections to the DISCLOSE Act (a very misleading acronym, as the bill "goes beyond disclosure," according to the Post).

First, the bill would only make campaign finance laws more complex and harder to comply with. Complex regulations favor larger businesses that can afford to pay the increased overhead. Smaller businesses, however, can silenced by regulations that place overly-onerous burdens on them. As the Commissioners note,

regulatory burdens often fall hardest not on large-scale players in the political world but on spontaneous grass-roots movements, upstart, low-budget campaigns, and unwitting volunteers…

The Disclose Act also creates new disclosure requirements for nonprofit advocacy groups that speak out. These groups already have to disclose their sponsorship, but Disclose requires them to go further and provide the government with a membership list. This infringes on the First Amendment rights of private associations recognized by the Supreme Court in NAACP v. Alabama. Groups can avoid this only by creating a new type of political action committee called a "campaign related activities account."

The result of these overly complex and unnecessary provisions is to force nonprofits to choose between two options that have each been found unconstitutional by the Supreme Court: Either disclose their members to the government or restrict their political spending to the campaign related activities account. This runs contrary to the explicit holding in Citizens United that corporations (and unions) may engage in political speech using their general treasuries.

These requirements will be especially burdensome to small businesses and grass-roots organizations, which typically lack the resources for compliance. So the end effect of all of this "enhanced disclosure" will be to ensure that only large corporations, unions and advocacy groups can make political expenditures—the exact opposite of what the sponsors claim to desire...

Additionally, the law would require any business or organization making political expenditures to create and maintain an extensive, highly sophisticated website with advanced search features to track its political activities.

As a result, small businesses, grass-roots organizations, and union locals that maintain only basic websites would be discouraged from making any expenditures for political advocacy, because doing so would require them to spend thousands of dollars to upgrade their websites and purchase software to report information that is already readily available to the public from the FEC. Large companies and unions could probably meet this requirement, so once again the bill benefits large, institutional players over small businesses and grass-roots organizations.

The op-ed also notes the rank partisanship in the Disclose Act in that it seeks to reimpose the regulations cast aside by the Supreme Court on corporations, but not on labor unions. In doing so, the Commissioners write, the bill

abandons the longstanding policy of treating unions and businesses equally, suggesting partisan motives that undermine respect for campaign finance laws…

The FEC must constantly fight to overcome the perception that the law is merely a partisan tool of dominant political interests. Failure to maintain an evenhanded approach towards unions and corporations threatens public confidence in the integrity of the electoral system.

For example, while the Disclose Act prohibits any corporation with a federal contact of $50,000 or more from making independent expenditures or electioneering communications, no such prohibition applies to unions. This $50,000 trigger is so low it would exclude thousands of corporations from engaging in constitutionally protected political speech, the very core of the First Amendment. Yet public employee unions negotiate directly with the government for benefits many times the value of contracts that would trigger the corporate ban.

This prohibition is supposedly needed to address concerns that government contractors might use the political process to steer contracts their way; but unions have exactly the same conflict of interest. So do other recipients of federal funds, such as nonprofit organizations that receive federal grants and earmarks. Yet there is no ban on their independent political expenditures.

The Commissioner's most basic and effective charge, however, is simply that the law is un-American. Restricting any form of speech is dangerous; but political speech must be guarded more jealously than any other type.

Violating the law by engaging in forbidden political speech can land you in a federal prison, a very un-American notion. The Disclose Act exacerbates many of these problems and is a blatant attempt by its sponsors to do indirectly, through excessively onerous regulatory requirements, what the Supreme Court told Congress it cannot do directly—restrict political speech.