The Democracy Is Strengthened by Casting Light On Spending in Elections Act, commonly known as the DISCLOSE Act and also known as H.R. 5175 (S.3628-Senate), was a bill introduced in the U.S. House of Representatives by Chris Van Hollen (D-Maryland) on April 29, 2010 and in the U.S. Senate by Charles Schumer (D-New York) on July 21, 2010.
To amend the Federal Election Campaign Act of 1971 to prohibit foreign influence in Federal elections, to prohibit government contractors from making expenditures with respect to such elections, and to establish additional disclosure requirements with respect to spending in such elections, and for other purposes.
After a cloture vote failed 59–39 on September 23, 2010, the bill was essentially defeated.
On March 29, 2012, Senator Sheldon Whitehouse (D-Rhode Island) introduced the "Democracy is Strengthened by Casting Light On Spending in Elections Act of 2012" (S.3369). It was referred to the Senate Committee on Rules and Administration. This bill has been called the "DISCLOSE Act 2.0" by Democratic sponsors.
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.
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.
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 of 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.”
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.
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.
Interest group participation and public reaction
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.
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, protects political speech, encourages the use public financing options for political candidates, and promotes disclosure for advertisement contributions.
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.
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."
|This section does not cite any references or sources. (August 2012)|
|This section may contain previously unpublished synthesis of published material that conveys ideas not attributable to the original sources. (August 2012)|
On September 23, 2010 conservative pundit Michelle Malkin called “false” on Senator Chuck Schumer's statement, "We do not want to chill free speech." She continued by noting the irony of Senator Schumer complaining about "transparency" while ignoring loopholes in the bill carved out for special interests, and for having drafted the bill behind closed doors with lobbyists.
Jesse Zwick wrote in the Washington Independent to explain why Republicans, who have historically favored transparency initiatives, were not agreeing with Democrats on the bill.
According to Zwick, the problems with the bill really started when the House of Representatives added a carve-out in the bill for membership groups like the National Rifle Association (NRA). This move allowed the bill’s opponents to argue that it was the result of a corrupt process and was not a pure transparency initiative, so when it moved to the Senate, moderate Republicans and Democrats were not willing to participate in talks. Had that incentive not occurred, there may not have ever been a debate regarding the DISCLOSE Act.
Another conservative pundit, John Feehery, argued on The Hill's Pundits Blog on June 17, 2010 that Democrats, in the run-up to the 2010 midterm elections, would not allow people to speak out against "the government takeover." "They are so desperate," he wrote, "they have made a deal with the devil himself, the NRA."
The NRA was not included as an organization that will have to disclose contributions because an agreement between Democrats and the NRA exempted organizations that have over one million members, have been in existence for more than 10 years, have members in all 50 states, and raise 15% or less of their funds from corporations, from the disclosure requirements. Many have criticized the criteria as a means of rewriting the Bipartisan Campaign Reform Act in favor of the Democrats, as they exempt virtually all of the major unions from having to disclose contributions while heavily regulating such activity for corporations.
An editorial in the Washington Post argued that the Citizen's United ruling is "unhealthy for democracy. As the Supreme Court itself explained in the portion of its Citizens United ruling rejecting a challenge to existing reporting requirements, the First Amendment protects political speech; and disclosure permits citizens and shareholders to react to the speech of corporate entities in a proper way. This transparency enables the electorate to make informed decisions and give proper weight to different speakers and messages. The current disclosure void threatens that balance, with an electorate clueless about the interests trying to influence their votes."
- Citizens United v. Federal Election Commission
- Campaign finance in the United States
- Interest advocacy
- Independent expenditure
- Money trail – Money loop
- Political action committee
- Bill Summary & Status – 111th Congress (2009–2010) – S.3628 – THOMAS (Library of Congress)
- Bill Summary & Status – 112th Congress (2011–2012) – S.2219 – THOMAS (Library of Congress)
- Bill Summary & Status – 112th Congress (2011–2012) – S.2219 – All Congressional Actions – THOMAS (Library of Congress)
- Senate Dems push ‘Disclose Act 2.0’ – The Hill
- "Citizens United v. Federal Election Commission". The Oyez Project at IIT Chicago-Kent College of Law. Retrieved 2012-07-20.
- Obama, Barack (January 27, 2010). "Remarks of the President in State of the Union Address".
- Dionne, E.J. Jr. (February 5, 2012). "The Citizens United Catastrophe". Washington Post.
- Citizens United v. FEC, 130 S. Ct. 876 (2010), at 887, 909.
- Citizens United v. FEC, 130 S. Ct. 876 (2010), at 947 (Stevens, J., dissenting)
- , 130 S. Ct. 876 (2010), at 937, fn. 15 (Stevens, J., dissenting)
- The Campaign Legal Center, "A Guide to the Current Rules For Federal Elections", http://www.campaignlegalcenter.org/index.php?option=com_content&view=article&id=1187%3Aa-guide-to-the-current-rules-for-federal-elections&catid
- "Democracy is Strengthened by Casting Light on Spending in Elections Act: Bill Summary & Status – 111th Congress (2009–2010) – H.R.5175". THOMAS (Library of Congress). Retrieved 2012-07-20.
- "Democracy is Strengthened by Casting Light on Spending in Elections Act: Bill Summary & Status – 111th Congress (2009–2010) – S.3628". THOMAS (Library of Congress). Retrieved 2012-07-20.
- The Influence Industry: Disclose Act could deter involvement in elections
- "Press Release – Boehner: Dems’ DISCLOSE Act Will "Shred Our Constitution for Raw, Ugly, Partisan Gain"". John Boehner – 8th District of Ohio. June 24, 2010. Retrieved 2012-07-20.
- "SENATE DEMOCRATS UNVEIL LEGISLATION TO LIMIT FALLOUT FROM SUPREME COURT RULING THAT ALLOWS UNLIMITED SPECIAL-INTEREST SPENDING ON ELECTIONS – ANNOUNCE PLAN FOR SENATE PASSAGE BY JULY 4". Senator Charles E. Schumer. April 29, 2010. Retrieved 2012-07-20.
- "Press Release: Senate Democrats ‘Disclose’ Their Priority". U.S. Senate Republican Leader Mitch McConnell. September 22, 2010. Retrieved 2012-07-20.
- "FINAL VOTE RESULTS FOR ROLL CALL 391". House.gov. June 24, 2010. Retrieved 2012-07-20.
- "On the Cloture Motion (Upon Reconsideration, Motion to Invoke Cloture on the Motion to Proceed to S. 3628". U.S. Senate: Legislation & Records Home. September 23, 2010. Retrieved 2012-07-20.
- "Statement by the President on Passage of the DISCLOSE Act in the House of Representatives". The White House. June 24, 2010. Retrieved 2012-07-20.
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- Lee, MJ (February 23, 2012). "Stephen Colbert, Nancy Pelosi agree on DISCLOSE ACT". Politico. Retrieved 2012-07-20.
- "U.S. Chamber Calls Passage of DISCLOSE Act an Assault on Freedom of Speech". U.S. Chamber of Commerce. June 24, 2010. Retrieved 2012-07-20.
- "ACLU Urges No Vote On DISCLOSE ACT". American Civil Liberties Union. July 26, 2010. Retrieved 2012-07-20.