The DISCLOSE Act Would Cause More Problems Than It Solves

In typical fashion during yesterday's Senate Rules Committee hearing on "dark money" and the DISCLOSE Act (S.B. 443), Democrats tried to tie Republicans to dark money while turning a blind eye to the millions of dollars annually given to Democrats by liberal dark money groups.  

But unfortunately for Senator Whitehouse (who brings this bill up each session), one of the Democrat witnesses, Director of the Brennan Center for Justice Elections and Government Program Daniel Weiner, admitted that "Democratic and other left-leaning groups had swamp[ed] Republican and conservative spenders by a more than 2-1 ratio" in 2020.  

Senator Sheldon Whitehouse made an incredible claim that dark money is the root of every problem seen in this country today––such as influencing January 6, undermining climate change "bi-partisanship," perpetuating the "Big Lie", and even helping confirm conservative federal judges (packing the federal courts with selected judges leading to "a Court run wild").  Never mind the southern border crisis, the energy crisis, record crime, inflation, and virtually every other problem Americans are facing today, which are certainly all fueled by liberal dark money groups. 

Senator Whitehouse's DISCLOSE Act attempts to overcome a purported "slow-motion coup d'etat by secretive special interests surreptitiously, incrementally, taking over government power" by allowing citizens to see "who is spending the big money in politics – donors who spend over $10,000." 

Thankfully, the simplistic and ill-thought-out approach of the DISCLOSE Act was highlighted by David Keating, President of the Institute for Free Speech.  Keating testified to the Committee that numerous components of the DISCLOSE ACT would harm not only our democracy but also our First Amendment rights.  Just how bad is bill?  Well, it would:

  • Unconstitutionally regulate speech that mentions a federal candidate or elected official at
    any time under a vague, subjective, and dangerously broad standard that asks whether the
    speech “promotes,” “attacks,” “supports,” or “opposes” (“PASO”) the candidate or official.
    This standard is impossible to understand and would likely regulate any mention of an
    elected official who hasn’t announced their retirement.
  • Force groups to file burdensome and likely duplicative reports with the Federal Election
    Commission (“FEC”) if they sponsor ads that are deemed to PASO the president or
    members of Congress in an attempt to persuade those officials to support or oppose policy
    issues, including legislation.
  • Compel groups to declare on new, publicly filed “campaign-related disbursement” reports
    that their ads are either “in support of or in opposition” to the elected official mentioned,
    even if their ads are neither. This form of compulsory speech forces organizations to
    declare their allegiance or opposition to public officials, provides false information to the
    public, and is unconstitutional.
  • Force groups to publicly identify certain donors on reports for issue ads and on the face of
    the ads themselves. In many instances, the donors being identified will have provided no
    funding for the ads. Faced with the prospect of being inaccurately associated with what, by
    law, would be considered (unjustifiably, in many or most instances) “campaign” ads in
    FEC reports and disclaimers, many donors will stop giving to nonprofits, or these groups
    will self-censor.
  • Subject far more issue ads to lengthy disclaimer requirements, which will coerce groups
    into truncating their substantive message and make some advertising, especially online,
    practically impossible.
  • Focus public attention on the individuals and donors associated with the sponsoring
    organizations rather than on the communications’ message, exacerbating the politics of
    personal destruction and further coarsening political discourse.
  • For the first time, subject groups that sponsor communications about judicial nominees to
    burdensome campaign finance reporting, donor exposure, and disclaimer requirements
    without any sound policy justification or recognized constitutional basis for doing so.
  • Force organizations that make grants to file reports and publicly identify their own donors
    if an organization is deemed to have “reason to know” that a donee entity has made or will
    make so-called “campaign-related disbursements.” This new, vague, and subjective
    standard will greatly increase the legal costs of vetting grants, and many groups will end
    grant-making programs.
  • Impose inflexible disclaimer requirements on online ads from American speakers that may
    make many forms of small, popular, and cost-effective ads advocating government policy
    changes or the election or defeat of candidates effectively impossible."

Although much of yesterday's testimony was directed towards dark money emanating from corporations (which presented Democrat Senators with yet another opportunity to criticize Citizens United v. Federal Election Comm'n), there was no testimony addressing how dark money from labor unions, which give millions of dollars every year to Democrat causes, would be treated under the bill.  Knowing Dems, it would almost certainly remain under the radar.  

Keating reassured the Committee that the legislation would no doubt be challenged in courts on numerous grounds if passed.  As Senator Cruz stated yesterday, the DISCLOSE Act is unconstitutional and "designed to target and harass speech that the left doesn't like."  But the reality is that forced "disclosure" should not be for the Government to be able to monitor the activities of its citizens, but vice versa.  Passage of this legislation––which is unlikely––would cause more problems than it solves.