That’s a tweet from Roll Call Senate reporter Niels Lesniewski just after breakfast this morning. Instead of taking up annual appropriations, a rudimentary function of annual fiscal business in Congress, Senate Democrats are instead choosing to attempt to squelch political participation before the November elections.
As I wrote for The Daily Caller at the end of June, there is no coherent moral case for compulsory disclosure of the sources of campaign contributions. As a matter of law, and as Senate Minority Leader Mitch McConnell noted during a speech he gave to the American Enterprise Institute here in Washington last month, the U.S. Supreme Court’s ruling in the 1958 NAACP v. Alabama case (357 U.S. 449 (1958)) held that compulsory disclosure of member (donor) or agent (employee) lists placed a burden on individuals’ rights to associate freely with an organization that could advocate politically on behalf of minorities in the south. This right to associate freely with advocacy organizations is something the Court held in NAACP to be “ancillary to the freedom of speech.” When people cannot speak freely about politics or public policy, elected officials receive a transfer of surplus power at the expense of voters in the market for political representation.
In short, campaign finance “reforms” are nothing more than incumbency protection laws, often cloaked in moralistic language with no coherent backing.
This latest iteration of the DISCLOSE Act is S.3369, and was introduced yesterday by lead sponsor Senator Sheldon Whitehouse (D-Rhode Island) before being put on the calendar this morning. Neither full text nor summary text are available yet at the Library of Congress’s THOMAS website.
Whitehouse has been joined by eight of the who’s-who of progressive voices in the Senate as cosponsors:
- Senator Michael Bennet (D-Colorado)
- Senator Sherrod Brown (D-Ohio)
- Senator Al Franken (D-Minnesota)
- Senator Jeff Merkley (D-Oregon)
- Senator Bill Nelson (D-Florida)
- Senator Charles Schumer (D-New York)
- Senator Jeanne Shaheen (D-New Hampshire)
- Senator Tom Udall (D-New Mexico)
Senator John McCain (R-Arizona), cosponsor of the Bipartisan Campaign Reform Act of 2002, has not yet joined his colleagues in the new measure. Former Senator Russ Feingold (D-Wisconsin), who cosponsored the BCRA with McCain, lost his Senate seat in the tea party wave election of 2010, being ousted by Senator Ron Johnson (R-Wisconsin) by approximately 105,000 votes.
Whitehouse intimated toward the end of June, shortly before the Supreme Court ruled in American Tradition Partnership, Inc. v. Bullock that they were serious about the First Amendment in Citizens United v. FEC, that he and his colleagues would proceed with another attempt at the DISCLOSE Act if the Roberts court didn’t rule to their liking:
“It’s sort of the last chance for the Supreme Court to clean up the mess that it’s made and correct the sort of flagrant factual errors that recent history has demonstrated,” said Sen. Sheldon Whitehouse (D-R.I.), a lead sponsor of the DISCLOSE Act. “So if they don’t show an inclination to do that, it means it’s really all the more important that we redouble our efforts.”
The Supreme Court has made it quite clear that a constitutional amendment would be required to alter the current evolutionary trajectory of speech-related jurisprudence, so election year gambits like S.3369 are nothing more than an attempt to yell “KOCH BROTHERS” into the Congressional Record. It’s red meat for the power-hungry progressive base that wants to keep pro-liberty voices (and deep pockets) from competing with their massive money machine by using compulsory disclosure as a path to chill participation.
Nevertheless, be wary of these pushy do-gooders, and stay on top of this issue. If President Obama wins a second term, his senior adviser David Axelrod has already promised supporters that they would move to effectively repeal the First Amendment. The consequences of that would be disastrous.