DISCLOSE Act

Background

In response to the Supreme Court's decision in Citizens United v. Federal Election Commission, members of both chambers of Congress introduced the Democracy is Strengthened by Casting Light on Spending in Elections Act of 2010 (DISCLOSE Act).

The bill, as introduced, included banning U.S. corporations with 20 percent or more foreign ownership from influencing election outcomes through the use of campaign contributions; preventing Troubled Asset Relief Program (TARP) recipients from making political contributions; giving shareholders, organization members, and the general public access to information regarding corporate and interest group campaign expenditures; and requiring disclosure of membership information by organizations with more than 500,000 members that made political ads.

Citizens United v. Federal Election Commission

On January 21, 2010, the Supreme Court, in Citizens United v. Federal Election Commission, ruled that 2 U.S.C. 441a, which prohibited corporations and unions from making independent expenditures in political campaigns, was unconstitutional.

This ruling is frequently described as permitting corporations and unions to donate to political campaigns, or permitting foreign associations to donate to campaigns, or as removing limits on how much a donor can contribute to a campaign.

However, these claims are incorrect, as the ruling did not affect the 1907 Tillman Act's ban on corporate campaign contributions to campaigns (as the Court noted explicitly in its decision), nor the prohibition on foreign corporate donations to American campaigns, nor did it concern campaign contribution limits.

The ruling did remove the previous ban on corporations and organizations using their treasury funds for direct advocacy. These groups were freed to expressly endorse or call to vote for or against specific candidates, actions that were previously prohibited.

Legislative action

In response to the Citizens United decision, Representative Chris Van Hollen (D-Maryland) introduced the House version (H.R. 5175) and Senator Charles Schumer (D-New York) introduced the Senate version (S. 3628). Supporters argued that the Act, if passed, would deter corporate spending in elections.

Co-sponsors

House: Representatives Mike Castle (R-Delaware) and Walter Jones, Jr. (R-North Carolina) were the only two Republican co-sponsors of H.R. 5175. There were a total of 114 co-sponsors.

Senate: There were twenty-seven Democratic co-sponsors and no Republican co-sponsors in the Senate.

House of Representatives

In a Washington Post op-ed, Representatives Van Hollen and Castle stated that Congress should improve transparency and enforce disclosure on interests that attempt to influence election results. They argued that Americans deserve the right to information about special interests and that the law would protect democracy from outside influence.

The Republican Minority Leader, John Boehner (R-Ohio), opposed the legislation from its introduction. He argued that the DISCLOSE Act violated the First Amendment and that the bill is a scheme on the part of the majority to silence their opponents. He argued that the legislation had fallen victim to back-room deals and special interest exemptions:

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.

Senate

Senator Charles Schumer (D-New York), the lead sponsor of the Senate version of the DISCLOSE Act (s. 3628), claimed that at a time in which the American people fear the influence of special interests, the legislation would create greater disclosure over the flow of money. He further argued that unless Congress acted quickly, The Supreme Court would have predetermined the outcome of November's election.

Republican Leader Mitch McConnell (R-Kentucky), a major opponent of the current bill, stated that the majority had drafted a bill behind closed doors without Congressional hearings or markups. He argued that politics was driving the legislation.

Legislative procedure

On June 24, 2010 the House passed H.R. 5175 by a 219–206 vote (Roll call # 391). The Senate attempted to take up the legislation prior to the October recess working period, but failed to reach agreement on the Senate version (S.3628) on September 23, 2010 by a vote of 59–39 (Roll call # 240).

President Obama welcomed passage of the House bill. In his statement, he congratulated the House of Representatives for passing legislation that would create stronger disclosure requirements, restrict funding by organizations with recent government financial assistance, and limit the potential for foreign influence. After the Senate failed to pass legislation prior to October recess, President Obama expressed disappointment, stating that failure was a loss for the American people.

Public Interest Research Group

The US Public Interest Research Group supported the introduction of the DISCLOSE Act but withheld its support when special interest exemptions were provided. However, it continues to maintain its support for future Senate action on some version of the bill.

AFL-CIO

In a statement by AFL–CIO President Richard Trumka on April 29, 2010, he applauded Congress for introducing legislation that would create transparency and address issues related to campaign finance reform. Trumka stated that the United States needs stronger regulation in place to promote equal participation by individuals and organizations, protect political speech, encourage the use public financing options for political candidates, and promote disclosure for advertisement contributions.

Other

The bill was supported by the Democratic Party in Congress. Comedian Stephen Colbert endorsed the idea after Nancy Pelosi agreed to push other Democratic congressmen to participate on Colbert's Better Know a District segment.

United States Chamber of Commerce

In a press statement, United States Chamber of Commerce President and CEO Thomas Donohue criticized the House Democratic majority for passing legislation that would violate the principles of fairness and equality, as prescribed by the Constitution. Further, he argued that the bill's passage resulted from backroom deals with special interest groups and unions who "mask the movement of political money". Donohue argued that Congress should focus on the restoring the economy versus protecting their own jobs and called on the Senate to oppose future passage of the legislation.

National Federation of Independent Businesses

On June 22, 2010, the National Federation of Independent Businesses (NFIB) sent a key-vote letter to Members of the House of Representatives on behalf of Senior Vice President Susan Eckerly, opposing House passage of H.R. 5175. In their letter, the NFIB stated that passage would threaten small businesses under the First Amendment and creates an unlevel playing field by providing exemptions for certain special interests.

Other

The DISCLOSE Act was opposed by the American Civil Liberties Union (ACLU), which claimed that it "would inflict unnecessary damage to free speech rights and does not include the proper safeguards to protect Americans' privacy. The bill would severely impact donor anonymity, especially those donors who give to smaller and more controversial organizations."