Dangerous Disclosure

The Democrats’ DISCLOSE Act could be used to harass political enemies, critics say

June 27, 2012

The Supreme Court’s reaffirmation of Citizens United Monday has caused Democrats and opponents of the ruling to renew their push for legislation to reveal the funders of independent political activity.

The DISCLOSE Act, sponsored by Senators Chuck Schumer (D., N.Y.), Patrick Leahy (D., Vt.) and Sheldon Whitehouse (D., R.I.), would require groups spending more than $10,000 on election-related advertising to publicly name all donors who gave $10,000 or more. The bill would also require any broadcast advertisement to list the sponsoring group's top five funders.

However, such disclosure requirements would be used to intimidate private citizens participating in the political process and chill freedom of speech and association, say some Republican lawmakers and advocacy groups such as the ACLU.

It is important "to call attention to the fact that disclosure is not an unmitigated good and can be used for wrong purposes," said Brad Smith, chairman of the Center for Competitive Politics.

"What interest does the government have in assisting mobs—for lack of a better term—who want to attack people for exercising their First Amendment rights?" asked Smith.

Smith, a former FEC commissioner, pointed to the words of Schumer, who admitted when he introduced the bill, "The deterrent effect should not be underestimated."

Senate Minority Leader Mitch McConnell (R., Ky.) gave a speech at the American Enterprise Institute on June 15 in which he defended the Citizens United decision and spoke of the risks of the DISCLOSE Act.

"My own view has always been that if you can’t convince people of the wisdom of your policies, then you should come up with some better arguments," McConnell said in the speech.

"But for all its vaunted tolerance, the political left has consistently demonstrated a militant intolerance for dissent. Sadly, a growing number of people on the left, and now within government itself, appear to have concluded that they can’t win on the merits. So they’ve resorted to bullying and intimidation instead. And the potential consequences are grave."

McConnell has long been an opponent of limits on campaign spending. He filed an amicus brief in American Tradition Partnership v. Bullock, Monday’s Supreme Court case upholding Citizens United.

During his speech, McConnell recounted several instances of private citizens being harassed by not only outside liberal groups but the federal government itself.

"They’ve used the IRS, the FEC, the FCC, the SEC, their allies in the Obama campaign to go after people who disagree with them," McConnell said.

"The Obama campaign has rifled through the divorce records of a major donor to an opposing super PAC. The government itself is intimidating donors. Appointees at the IRS and other agencies are pursuing similar efforts to ferret out who is contributing to outside groups critical of the administration so that they can scare them off the playing field and shut them up."

The Obama campaign launched a website,, that lists the names of several major donors to GOP presidential candidate Mitt Romney.

McConnell’s speech drew harsh criticism from campaign finance reform advocates and Democrats who described it as "Nixonian" and "Orwellian."

The Sunlight Foundation, a pro-disclosure organization funded in part by ultra-wealthy left-wing philanthropist George Soros, called McConnell the "commander in chief" of a war against the DISCLOSE Act.

"His secret weapon is misinformation and his goal is to protect unlimited dark money contributions to the political process," Sunlight Foundation Government Accountability Consultant Lisa Rosenberg wrote.

Rosenberg dismissed claims the bill would chill political activity in an interview with the Free Beacon.

"I don’t believe it’s harassment," she said. "It’s free speech on the other side."

Rosenberg also said disclosure in political ads is necessary because "the messenger is as important as the message."

"When you see a 30-second attack ad on TV, it makes a difference knowing who paid for it," Rosenberg said. "That’s certainly what Justice Scalia and the 8-1 [concurrence] of the Supreme Court that voted in Citizens United would agree with. It’s a free-market exchange of ideas."

McConnell is protecting groups such as the U.S. Chamber of Commerce and the conservative super PAC American Crossroads, which have poured millions of anonymous dollars into highly effective attack ads this election cycle, critics say.

The Obama campaign recently filed a complaint with the Federal Elections Commission challenging American Crossroads’ sister 501(c)(4) organization Crossroads GPS’ tax-exempt status and demanding it be required to reveal its donors.

Critics have also assailed McConnell for comments he made in 2000 when the McCain-Feingold campaign finance laws were first being debated. "Republicans are in favor of disclosure," McConnell said on NBC’s Meet the Press at the time. "Why would a little disclosure be better than a lot of disclosure?"

"The Republicans, apparently, never meant it," Washington Post editorial page editor Fred Hiatt wrote. "Now that they have Unlimited Donations, or something pretty close, they don’t want Unlimited Disclosure after all. They want unlimited contributions, in secret."

Grover Norquist, the head of Americans for Tax Reform, said in an interview with the Free Beacon that Hiatt’s argument is "disingenuous" because, at the time, Republicans were trying to negotiate higher limits on campaign contributions in exchange for greater disclosure.

Times have changed, he said.

"As if since then we haven’t had death threats against people who contributed to traditional marriage amendments," Norquist said. "For crying out loud, there’s very serious things that have happened, and the other side has gone in on mau-mauing against the people talking about it."

Smith of the Center for Competitive Politics pointed to the increasing availability of information on political donors to anyone with Internet access, such as the Huffington Post’s Fundrace application, which allows users "to search by name or location to see which candidates or political parties your friends, family, co-workers, and neighbors are contributing to."

"What do we really think this is for?" Smith asked. "People see how disclosure is being used and tend to be less enthusiastic about disclosure."

The American Civil Liberties Union, which supported the Citizens United decision, has also come out in opposition of the DISCLOSE Act.

"The electoral system is strengthened by efforts to facilitate public participation, not by chilling free speech and invading the privacy of donors to controversial causes," the ACLU writes in a letter.

"Indeed, our Constitution embraces public discussion of matters that are important to our nation’s future, and it respects the right of individuals to support those conversations without being exposed to unnecessary risk of harassment or embarrassment.  Only reforms that promote speech will bring positive change to our elections, and overbroad disclosure requirements do the opposite."