Citizens United

DISCLOSE Act appears to be dead

Senate Republicans were able to hold together yesterday to filibuster the DISCLOSE Act, legislation that targets political speech as a response to the Citizens United decision:

The measure, known as the Disclose Act, fell one vote short of the 60 needed to break a GOP filibuster  in the divided Senate, with Republicans uniformly opposed to the bill. The legislation had also been blocked by Senate Republicans during an earlier vote in July.

The 59-39 vote marks a bitter defeat for Democratic leaders and President Obama, who has repeatedly urged Congress to pass the bill in response to a Supreme Court ruling lifting restrictions on corporate and union political spending.

The outcome represents a major victory for Republicans and major business groups, which lobbied hard against a proposal that they said was an attempt by Democrats to silence GOP-leaning business groups.

You can view the roll call vote here, but there are no surprises. It was a party line vote. Sen. Harry Reid, the leader of Senate Democrats, voted for the bill, which means that the DISCLOSE Act is ostensibly dead. A “nay” vote by the majority leader would have allowed him the right to bring it up at another time.

DISCLOSE Act coming up for a vote this afternoon

Today at 2:15pm, the United States Senate will, for the second time, vote on the DISCLOSE Act. In July, Republicans successfully filibustered the DISCLOSE Act, legislation aimed at curbing political speech in response to the Citizens United decision, from coming to the floor for limited debate and final passage this afternoon by a vote of 57 to 41 (60 votes are needed to move toward a vote for final passage).

Democrats hoped that an adjustment to the bill, which was to change the date the bill would go into law to the beginning of next year, preventing it from affecting the mid-term elections, would lure Republican support.

As Politico reports, it seems all but certain that Sen. Harry Reid (D-NV) doesn’t have the votes, but is using the DISCLOSE Act to stall for time until the weekend:

When the defense authorization bill failed to clear cloture Tuesday, Democrats needed a measure to fill floor time before the weekend, and the DISCLOSE Act was one of the few measures in their legislative arsenal that was quickly available.

Having failed cloture once, the campaign bill only requires a less strict “motion to recommit” from Reid to call another cloture vote. New legislation likely would need 30 hours after being filed, 30 hours the Senate doesn’t have.

So even if Democrats know they’re likely short of votes Thursday, the alternative was practically nothing.

Institute for Justice slams for hypocrisy

The folks over at the Institute for Justice are calling out for their hypocrisy in its protests of Target. In case you haven’t heard, the retailer is under fire for giving donations to Tom Emmer, a Republican that is opposes gay rights.’s premise is that a corporation shouldn’t be giving money to a candidate, playing off of the populist, anti-political speech sentiment that was a result of the Citizens United decision. The Institute for Justice calls the anti-liberty PAC out:

As we’ve noted, Target has drawn heavy fire for its donation to an organization that’s speaking out in support of Minnesota gubernatorial candidate who opposes gay marriage. One of the latest examples of this criticism is a humorous viral video featuring a flash mob that performs a song called “Target Ain’t People”—set to the tune of Depeche Mode’s hit song “People are People”—in the middle of a Target store as employees and customers look on with varying degrees of bemusement.

The Next Regulation? Your Tweets

Out in California, the Fair Political Practices Commission is looking at regulating new platforms for political speech, such as Facebook, Twitter, YouTube, even text messaging:

It’s become necessary as politicians in California and elsewhere announce their candidacies and major campaign policies through Twitter, YouTube and a host of social networking sites, said FPPC Chairman Dan Schnur.

He said California’s 36-year-old Political Reform Act needs rewriting to keep up with the times.

“Our goal here is to meet the new challenges of 21st Century technology,” Schnur said. “There’s no way that the authors of the act could have anticipated that these of types of communicating a campaign message would ever exist.”

Over at the Institute for Justice, Paul Sherman writes:

To paraphrase Chief Justice John Roberts, this is why we don’t leave our free speech rights in the hands of FPPC bureaucrats.  To bureaucrats like those at the FPPC, the Federal Election Commission or their analogues, there seems to be no need to show any evidence that Twitter, Facebook or text messages actually pose any threat to the public.  It is enough that they these new forms of low-cost media aren’t currently regulated, but could be.  Their primary concern, apparently, is that the regulation of political speech be as comprehensive as possible.

Democrats’ hypocrisy on corporate influence in politics

Despite the fact that Democrats are pushing the DISCLOSE Act, which was successfully filibustered by Republicans yesterday, Tim Carney writes that they Sen. Chuck Schumer (D-NY) doesn’t have a problem with a corporate influence in politics as long as it runs through Washington, DC:

In January, when the Supreme Court ruled in the Citizens United case that Congress shall, in fact, make no law abridging the freedom of speech, Schumer warned, “This opens the floodgates and allows special interest money to overflow our elections and undermine our democracy.” Schumer, as the top recipient of money from Wall Street, real estate, and the insurance industry, knows about being awash in special-interest money.

So is he just blowing smoke? Not exactly. Citizens United overturned a federal ban on organizations using money to praise or critique politicians just before Election Day. In other words, businesses, unions and activist groups are now as free to talk about Chuck Schumer’s proposals as Chuck Schumer or the New York Times are. This is no good for Schumer, not only because it makes it easier for criticism of him to reach Americans’ tender ears, but also because it allows groups and businesses to go over his head, so to speak.
The most telling episode was probably Chuck Schumer’s hedge-fund racket. Once Democrats took over Congress in 2007, Schumer told fund managers to start playing ball. The industry multiplied its lobby spending by six, hired a former congressman to head its trade association, and — of course — ramped up giving to Schumer and other Senate Democrats. Then the hedge funds hired Schumer’s banking staffer, Carmencita Whonder, as a lobbyist. She’s now a leading fundraiser for Schumer.

Republicans filibuster DISCLOSE Act

Republicans managed to block the DISCLOSE Act, legislation aimed at curbing political speech in response to the Citizens United decision, from coming to the floor for limited debate and final passage this afternoon by a vote of 57 to 41 (60 votes are needed for cloture).

Here are the members of the United States Senate that voted against the right to free speech protected by the First Amendment (Reid voted against it so he can bring it up again, as per Senate Rules):

The Citizens United Debate

The Institute for Justice brings us The Citizens United Debate, where Steve Simpson and Ilya Shapiro (arguing for the First Amendment) debated Richard Hasen and Jamin Raskin (arguing against the First Amendment) on the Citizens United decision by the Supreme Court from earlier this year that has reignited debate on campaign finance law.

Here is the first part of the debate:

Part 2:

Will Kagan recuse herself from ObamaCare case?

If Elena Kagan is confirmed to the Supreme Court, she may not help ObamaCare when and if comes before the the court. Michael Cannon explains:

Kagan has already told the committee she would recuse herself from any case in which she “participated in formulating the government’s litigating position.”  Given that she appears to take an expansive view of Congress’ power to regulate interstate commerce, the best possible outcome for opponents of ObamaCare would probably be for Kagan to join the Court but recuse herself from cases challenging that law.

That would also be the worst possible outcome for the administration.  In fact, universal coverage is so important to the Left that if Kagan would leave them with one less pro-ObamaCare vote on the Court, I wouldn’t be surprised to see President Obama withdraw her nomination.  He could then appoint someone as ideologically reliable as Kagan, but who could actually defend the president’s signature accomplishment.

This could get interesting.

I don’t trust Antonin Scalia or Anthony Kennedy, but the court does seem to have it out for President Obama since his absurd comments about the Citizens United case, an opinion authored by Kennedy, during his State of the Union address.

DISCLOSE won’t have the impact proponents expect

After the controversial Citizens United ruling, supporters of campaign finance reform argued that something - anything - had to be done to protect the American electoral system from the evils of corporate influence. The attempt is the DISCLOSE Act that is worming its way through the system. To bad it won’t actually hurt the corporations that proponents think they’re targeting.

You see, since Citizens United, it has become clear that the government can’t legally ban political speech. They may want to, but they can’t. Since they’re limited, all that can really do is make it more difficult to get a message out. This effort has ultimately resulted in the “stand by your ad” provision that requires disclosure of who the ad is by, who paid for it, etc.

Many opponents argue that this will require almost half of a 30 second spot, effectively limiting the time available for a message. That’s the theory anyways. In practice though, it may simply up the cost to get that message out there. Now, instead of a 30 second spot, a full minute will be needed.

A minute is a lot of time as far as advertising goes. It’s not something that comes cheap by any means, especially at the network level where advertising on national campaigns is typically done. It’s the kind of cost that smaller groups simply can’t afford, but the corporations that President Obama and his administration fear monkeying with electoral politics have plenty of money for such things.

Even if they hadn’t gotten their precious carve out, the NRA could have handled a full minute of network prime time. Not so much.

Here’s a hypothetical example:

Kagan and First Amendment

During the oral arguments in Citizens United case (actually, a rearguing), Elena Kagan told the Court that a book could be banned if the authors purpose was “express advocacy” of a particular issue or candidate, but that there “has been no administrative practice of ever applying” campaign finance laws to that extent.

You can listen to Kagan’s exchange with Ginsburg, Scalia and Alito below. You can read it here (pages 64-68):

Over at Reason, Daniel Shuchman points out that the government’s argument had changed since the first oral argument:

In the first argument before the Court, on March 24, 2009, Kagan’s deputy, Malcolm L. Stewart, represented the government by arguing for the constitutionality of a statute prohibiting corporations and unions from spending funds from their general treasuries to advocate the election or defeat of political candidates. The justices subjected Stewart to a series of stark hypothetical situations testing the extent of the censorship power that the Obama Administration viewed as constitutionally permissible.


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