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Disclosing the cynicism of unconstitutional legislation

The House voted 216-209 Thursday to pass H.R. 5175, the DISCLOSE Act, unusual even by Capitol Hill standards in its cynical partisanship, crass exemptions for favored groups (labor unions and the NRA), and contempt for the First Amendment. It was a disheartening and aggravating debate to watch, but not too long. As Rep. Dan Lungren (R-CA) pointed out, the House has spent 10 hours debating the names of U.S. post offices, but the debate on H.R. 5175 itself was limited to a single hour. (It starts on page H4795 in The Congressional Record.)


  • The legislation goes into effect 30 days after being signed into law, insufficient time for the Federal Election Commission to promulgate rules. Thus, those who engage in political speech via campaign ads and expenditures will face criminal penalties but have no guidance from the regulations in how to comply with the law. The risk chills speech.
  • If sponsors truly believed the bill's restrictions are constitutional, they would have welcomed expedited judicial review. But in the House Rules Committee (vote 453) and, on the floor of the House, defeating the motion to recommit (208-217), Democratic supporters explicitly rejected the expedited review language included in the McCain-Feingold campaign finance reform legislation.
  • The most egregious offense against the Constitution passed on a voice vote. Rep. Dennis Kucinich (D-OH) successfully included an amendment to ban independent expenditures and electioneering communications by companies with federal leases allowing them to drill for oil and gas in the Outer Continental Shelf. Rep. Lungren responded (Congressional Record, page H4819): "The court has said you cannot establish disfavored groups over favored group. The gentleman has just expressed, perhaps an appropriately conditioned animus, toward those who are engaged in offshore drilling. So we are going to say they, those corporations, because they engage in offshore drilling, with leases, cannot participate in the political process in the way anybody else can."
  • It's just disclosure, supporters claimed. Well, except for labor unions, which gained a last-minute exemption to shield internal transfers of money for political purposes. Not to mention a full-blown ban on mentioning political candidates. As former FEC Chairman Bradley A. Smith recently wrote in The Washington Post: " The Disclose Act, however, defines literally thousands of both nonprofit and for-profit entities as 'government contractors' and prohibits them from mentioning a political candidate or officeholder for a period starting 90 days before the primary and going straight through to the general election."

Sponsored by the head of the Democratic campaign committee for the House (Rep. Chris Van Hollen) and Senate (Sen. Charles Schumer), the bill is aggressively partisan. If it passes the Senate -- no certainty -- and President Obama signs it, the law will eventually be struck down by the U.S. Supreme Court as unconstitutional. In the meantime, the DISCLOSE Act will have achieved its goals: chilling criticism of Democratic incumbents before the November 2010 elections.

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Rafael Mangual
Project Manager,
Legal Policy

Manhattan Institute


Published by the Manhattan Institute

The Manhattan Insitute's Center for Legal Policy.