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What You Should Know About the DISCLOSE Act Part 4: Is the DISCLOSE Act Constitutional?

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This evening, the Senate will vote on the DISCLOSE Act, a bill that would shine a light on the dark money that is funding our elections and possibly buying access and influence to our elected officials. Some special interests, like the NRA and the Chamber of Commerce want to kill the bill in order to maintain their secret money advantage. Some politicians, led by Mitch McConnell, want to kill the bill in order for the secret money to keep flowing their way. To make their case, they make false and misleading statements about the bill. In the fourth part of our series, What You Should Know About the DISCLOSE Act, we address the claim that the DISCLOSE Act is unconstitutional.

The ultimate arbiter of constitutionality—the Supreme Court—has already answered the question by upholding disclosure as a constitutional remedy to address the corruption and appearance of corruption that stems from money in politics. In its Citizens United decision, an overwhelming majority of the court held that disclosure requirements “impose no ceiling on campaign-related activities” and “transparency enables the electorate to make informed decisions and give proper weight to different speakers and messages.”

Unfortunately, opponents of disclosure tend to selectively ignore the Supreme Court and claim that transparency would “chill speech.” McConnell likes to say the DISCLOSE Act is an attempt to “micromanage political speech.” Under the DISCLOSE Act, no speech is chilled and no speech is managed, micro, macro or otherwise. No one, not a single wealthy individual, corporation, union, or non-profit is prevented from saying anything under this bill. The most distorted, misleading, mudslinging political speech is fully protected. The DISCLOSE Act places no limits on how much can be spent on any “independent” political speech. The bill is, as its name suggests, about disclosure and is designed to answer a basic question: Who is the messenger?

Because the bill itself does nothing to limit anyone’s speech, opponents of the DISCLOSE Act must stretch their argument to claim that disclosure will lead to intimidation of the corporations, unions and wealthy individuals who can now hide their five-, six- and seven- figure contributions to political campaigns. Rather than risk “intimidation,” the argument goes, the special interests will just stop writing checks—er, speaking.

Again, the answer has been provided by the Supreme Court itself. In Doe v. Reed, a 2010 case that, like Citizens United, upheld disclosure requirements, Justice Scalia, among the most conservative justices on the Court, famously stated:

There are laws against threats and intimidation; and harsh criticism, short of unlawful action, is a price our people have traditionally been willing to pay for self-governance. Requiring people to stand up in public for their political acts fosters civic courage, without which democracy is doomed. For my part, I do not look forward to a society which…campaigns anonymously…and even exercises the direct democracy of initiative and referendum hidden from public scrutiny and protected from the accountability of criticism. This does not resemble the Home of the Brave.

Remedies already exist for groups that can demonstrate that they are subject to harassment due to political disclosure. Preemptive anonymity has never been upheld as a remedy for speculative harm. Moreover, much of the potential harm from which McConnell wishes to protect corporate donors is consumer backlash that may result if the public boycotts a corporation’s products because it disagrees with the corporation’s political positions. Consumer boycotts are, in fact, a legitimate and protected type of speech.

McConnell also argues that the DISCLOSE Act would not only restrict freedom of speech, but freedom of association. His claim that “this bill calls for…government-compelled disclosure of contributions to all grassroots groups…” is simply wrong. The bill only subjects to disclosure contributions of $10,000 or more, and explicitly allows donors to membership organizations to remain anonymous if they do not wish to have their dues or contributions used for political purposes. Organizations can set up separate accounts for so that the disclosure rules would apply only to accounts that fund electioneering or independent expenditures.

It is telling that many members of Congress who now oppose the DISCLOSE Act vigorously supported transparency in the past, with no qualms about whether or not it was constitutional. As recently as 2010, McConnell said, “We need to have real disclosure. And so what we ought to do is broaden the disclosure to include at least labor unions and tax-exempt business associations and trial lawyers so that you include the major political players in America. Why would a little disclosure be better than a lot of disclosure?” In 2003 he said, "Money is essential in politics, and not something that we should feel squeamish about, provided the donations are limited and disclosed, everyone knows who's supporting everyone else."

The Citizens United court coupled its support for unlimited corporate political expenditures with equal support for robust disclosure. No matter how vigorously opponents claim otherwise, disclosure is a constitutionally approved remedy for the corruption that comes with unlimited contributions to the political process.

Up Next: What You Should Know About the DISCLOSE Act: What Can I Do?

Previously:
What You Should Know About the DISCLOSE Act Part 1: What is the DISCLOSE Act?

What You Should Know About the DISCLOSE Act Part 2: How Does the DISCLOSE Act Shine a light on Super PACs and Dark Money?

What You Should Know About the DISCLOSE Act Part 3: Does the DISCLOSE Act Favor Unions?