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Impending Government Censorship

Posted By Hans von Spakovsky On May 25, 2010 @ 3:30 pm In First Principles | Comments Disabled

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Last week, eight former commissioners from the Federal Election Commission (including me) tried to warn a committee in the House of Representatives that a bill it was about to vote on was not only unnecessary, but so burdensome to the right of political speech and advocacy that it violates the First Amendment.

We summarized our criticisms of the “Democracy Is Strengthened by Casting Light on Spending in Election Act,” or DISCLOSE Act (H.R. 5175), in this commentary in the Wall Street Journal [2].  As we pointed out, the DISLOSE Act not only abandons the longstanding policy in federal campaign finance law of treating unions and businesses equally, it attempts to do indirectly (through onerous and complex regulations) what the Supreme Court told Congress in the Citizens United decision that it cannot do directly – restrict the political speech of corporations and unions, including nonprofit associations.

A series of amendments were offered to the bill in the House Administration Committee by Republican members that would have applied some of the requirements of the bill equally to labor unions.  They were all defeated.  For example, the bill prohibits government contractors who receive government contracts above a certain amount from spending any funds on political advocacy. Rep. Dan Lungren (R-CA) offered an amendment that would have extended that prohibition to unions in representational contracts with the government.  If one believes that government contractors have some kind of “conflict of interest” because they are receiving government funds, then the same conflict of interest would apply to unions who represent government workers who are also receiving government funds.  But that amendment was defeated in a vote on party lines, as was an amendment by Rep. Gregg Harper (R-MS) that would have extended the same ban to any other recipient of government grants.

Similarly, the bill prohibits companies with a certain percentage of foreign shareholders or officers from engaging in independent political advocacy.  Yet an amendment offered by Rep. Lungren that would have applied that same ban to unions that receive dues from foreign nationals was again rejected.  Of course, this should surprise no one since, for example, The Hill newspaper is reporting that just one union alone, the American Federation of State, County and Municipal Employees, plans to spend in excess of $50 million during the 2010 campaign, part of which will fund “a massive incumbent protection program.”  Is it any surprise that the incumbent sponsors of this bill want to exempt unions from many of its provisions?  That is why former FEC Chairman Brad Smith calls it the “Democratic Incumbents Seeking to contain Losses by Outlawing Speech in Elections” Act.

The eight commissioners have almost 75 years of experience between them and served on the FEC from its inception in 1975 through 2008.  We know how difficult a balancing act it is to enforce the Federal Election Campaign Act, which governs all federal campaigns, while protecting the very basic First Amendment rights to engage in political speech, political advocacy, and to run for office in order to participate in the governance of this nation.  The DISCLOSE Act seems intended to deter and intimidate the political speech of those whom the sponsors and supporters of the bill do not want to hear from in the political arena, which are the hundreds of thousands of businesses and voluntary associations throughout America who are being hurt by the foolish economic and regulatory decisions being made in Congress.  In fact, at the hearing [3], Rep.Michael Capuano (D-MA) essentially admits that he wishes it were possible to ban outside groups from participating in elections and he hopes the bill chills their speech, a very disturbing and scary admission by a government official that he sees nothing wrong with government censorship.  American businesses and private associations have just as much right as anyone else to make their views known on everything from health care to cap and trade regulation.

The full House of Representatives may vote on this bill as early as this Friday.  If it passes Congress and is signed into law by President Obama, there is no question that it will face serous court challenges as a violation of the First Amendment.  But it will also be another example of how campaign finance proposals, which are always portrayed as a way of supposedly “reforming” the election system, are all too often motivated by partisanship and supported by those who seem to lack a basic understanding of the Constitution, the Bill of Rights, and the fundamental freedoms enshrined in the master blueprint of American democracy.


Article printed from The Foundry: Conservative Policy News from The Heritage Foundation: http://blog.heritage.org

URL to article: http://blog.heritage.org/2010/05/25/impending-government-censorship/

URLs in this post:

[1] Image: http://www.foundry.org/wp-content/uploads/censorship-10-5-25.jpg

[2] commentary in the Wall Street Journal: http://online.wsj.com/article/SB10001424052748703460404575244772070710374.html?KEYWORDS=disclose+act

[3] at the hearing: http://houseadmin.edgeboss.net/wmedia/houseadmin/2010/disclmarkup.wvx

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