DISCLOSE Act

The Democracy Is Strengthened by Casting Light On Spending in Elections Act or DISCLOSE Act is a federal campaign finance reform bill that has been introduced in the United States Congress since 2010. The bill would amend the Federal Election Campaign Act of 1971 to provide for greater and faster public disclosure of campaign spending and to combat the use of "dark money" in U.S. elections (which increased from $69 million in 2008 to $310 million in 2012).

The DISCLOSE Act passed the House of Representatives in June 2010 on a 219–206 vote, but was defeated in the Senate following a successful Republican filibuster; after cloture motions in July 2010 and September 2010 resulted in 57–41 and 59–39 votes, respectively, failing to obtain the necessary 60 votes to advance. Senate and House Democrats, such as Senator Sheldon Whitehouse of Rhode Island, have re-introduced variants of the DISCLOSE Act to each succeeding Congress since 2010. An unsuccessful 2014 version of the bill was sponsored by 50 Senate Democrats.

In 2019, the DISCLOSE Act requirements were incorporated into the broader For the People Act (H.R. 1), which passed the Democratic-controlled House of Representatives on a party-line 234–193 vote, but did not advance in the then Republican-controlled Senate.

Background and provisions

In 2010, the Supreme Court issued a 5–4 decision in Citizens United v. FEC, ruling that 2 U.S.C. 441a, which prohibited corporations and unions from making independent expenditures in political campaigns, was unconstitutional. The decision overturned an earlier decision, Austin v. Michigan Chamber of Commerce (1990).[1][2] In response, Democrats in Congress introduced the DISCLOSE Act to establish new disclosure and other requirements for campaign-related spending.[2][3] Democrats sought to enhance transparency requirements because the Citizens United decision, while striking down some federal campaign finance laws, upheld the existing federal disclosure requirements and indicated that Congress and states could constitutionally require further disclosures, stating that "Transparency enables the electorate to make informed decisions and give proper weight to different speakers and messages."[4]

The bill would amend the Federal Election Campaign Act of 1971 to provide for greater and faster public disclosure of campaign spending and to combat the use of "dark money" in U.S. elections (which increased from $69 million in 2008 to $310 million in 2012).[5] The 2018 version of the DISCLOSE Act bill:[6]

  • Would require "covered organizations" (defined to include corporations, labor organizations, 501(c)(4) groups, 527 organizations and super PACs) to file reports disclosing election spending of $10,000 or more with the Federal Election Commission within 24 hours, and to also list, in the disclosure report, the sources of all contributions of $10,000 received by the covered organization during that election cycle.[6] An exception to the disclosure requirement is provided for non-political contributions.
  • Would add a "stand by your ad" provision 'requiring leaders of corporations, unions, and other organizations to identify that they are behind political ads."[6]
  • Would repeal earlier legislative provisions prohibiting "(i) the SEC from requiring public companies to disclose their political spending to shareholders; (ii) the IRS from issuing needed regulations on 501(c)(4) social welfare organizations; and (iii) the government from requiring federal contractors to disclose their political donations as part of the bidding process."[6]
  • Would prohibit U.S. corporations "with significant foreign control, ownership, or direction from spending money in elections" but allows U.S. subsidiaries of foreign corporations "to continue to have employee PACs as long as no foreign nationals have decision-making authority or control of the PAC."[6]
  • Would restrict the use of shell companies as conduits for election funding by requiring companies that are engaged in election expenditures to disclose the true owners.[6]

Legislative history

The chief sponsors of the 2010 bill were Representative Chris Van Hollen, the chairman of the Democratic Congressional Campaign Committee, and Senator Charles Schumer, a former chairman of the Democratic Senatorial Campaign Committee.[3] The bill attracted almost no support from Republicans;[3] among the 114 co-sponsors of the 2010 House version of the legislation, only two (Mike Castle of Delaware and Walter B. Jones Jr. of North Carolina) were Republicans.[4][7]

The DISCLOSE Act (H.R. 5175) passed the U.S. House of Representatives in June 2010 on a 219–206 vote,[8][9] but was defeated in the Senate following a successful Republican filibuster; after cloture motions in July 2010 and September 2010 resulted in 57–41 and 59–39 votes, respectively, failing to obtain the necessary 60 votes to advance.[10][11] Senator Sheldon Whitehouse of Rhode Island, and other Senate and House Democrats, have re-introduced variants of the DISCLOSE Act to each succeeding Congress since 2010.[lower-alpha 1] In July 2012, the Senate again debated the DISCLOSE Act, but a motion to invoke cloture was defeated on a 53–45 vote.[17] The Senate Rules Committee held one hearing on the bill in the 113th Congress (2013-2014), and no significant legislative activity took place in the next two Congresses.[17] The unsuccessful 2014 version of the bill was sponsored by 50 Senate Democrats.[5]

In 2019, the DISCLOSE Act requirements were incorporated into the broader For the People Act (H.R. 1),[18][19] which passed the Democratic-controlled House of Representatives on a party-line 234–193 vote, and has not advanced in the Republican-controlled Senate.[20]

Support and opposition

The DISCLOSE Act is supported by congressional Democrats,[21] who describe it as a campaign finance reform measure necessary to combat dark money[22] in response to the Citizen United decision.[23] The chief sponsor of the legislation, Senator Sheldon Whitehouse of Rhode Island, said that the DISCLOSE Act was necessary to counter big-money campaign expenditures that threaten "to drown out the voice of middle-class families in our democracy."[23] while Senator Schumer described the legislation as a way to "limit fallout" from the Citizens United decision to constrain the influence of "unlimited special-interest spending on elections."[24] The legislation was supported by President Barack Obama, who said that the bill as "a critical piece of legislation to control the flood of special interest money into our elections" and praised its provisions that "would establish the strongest-ever disclosure requirements for election-related spending by special interests, including Wall Street and big oil companies, and ... would restrict spending by foreign-controlled corporations" to "give the American public the right to see exactly who is spending money in an attempt to influence campaigns for public office."[25]

The legislation is also supported by reform-oriented groups,[26] such as Common Cause, Public Citizen, Democracy 21, the League of Women Voters, and the Campaign Legal Center,[26][27] as well as the Brennan Center for Justice, Citizens for Responsibility and Ethics in Washington, Demos, People For the American Way, and the Sunlight Foundation.[26] Supporters of the bill argue that the proposed disclosure requirements are constitutional under applicable Supreme Court precedent, such as Doe v. Reed.[26]

The U.S. Public Interest Research Group and Sierra Club initially supported the 2010 bill, but pulled their support after Democrats agreed to add a provision that would exempt the National Rifle Association (NRA) and a handful of other large groups from the disclosure requirements at the heart of the legislation.[27] This carve-out for the NRA was eliminated in the 2012 version of the legislation, which prompted the NRA to oppose the bill.[28]

The AFL–CIO supported legislative action to counter the Citizens United decision and what it termed "the excessive and disproportionate influence by business."[29] The labor federation did not object to the House version of the 2010 legislation, but did publicly oppose the Senate version of the legislation because it would have required affiliate unions to disclose financial transfers within their labor federations, which the AFL-CIO objected to as "extraordinary new costly and impractical record-keeping and reporting obligations on thousands of labor (and other non-profit) organizations with regard to routine inter-affiliate payments that bear little or no connection with public communications about federal elections."[30]

The DISCLOSE Act was opposed by congressional Republicans, who in 2012 filibustered the legislation in the Senate.[31][23] Republicans such as then-Senate Minority Leader Mitch McConnell contend that the legislation's transparency requirements would violate constitutional free speech rights and are an attempt by Democrats to impose a chilling effect on political giving.[31] The legislation was also opposed by right-wing advocacy organizations, including the Institute for Free Speech (formerly the Center for Competitive Politics), Heritage Foundation, Americans for Tax Reform, American Conservative Union, CatholicVote.org, and Citizens Against Government Waste,[26] as well as the United States Chamber of Commerce[32] and National Federation of Independent Business.[33]

The American Civil Liberties Union (ACLU) also opposed expressed opposition in 2010 and 2019 to proposed DISCLOSE Act requirements, arguing that it unnecessarily impinge on free speech rights, subject recipients to "onerous and intrusive disclosure requirements," and adversely impact donor anonymity.[19][34]

See also

Notes
  1. The legislation was introduced in the 112th Congress (2011–2012),[12] 113th Congress (2013–2014),[13] 114th Congress (2015–2016),[14] 115th Congress (2017–2018),[15] and 116th Congress (2019–2020),[16] without success.

References
  1. Citizens United v. Federal Election Commission, 558 U.S. 310 (2010).
  2. David M. Herszenhorn, Campaign Finance Bill Is Set Aside, New York Times (July 27, 2010).
  3. T.W. Farnam, The Influence Industry: Disclose Act could deter involvement in elections, Washington Post (May 13, 2010).
  4. Mark Schmitt, Cynics United: When Did Conservatives Change Their Mind About Campaign Finance Disclosure?, New Republic (June 4, 2012).
  5. Andy Kroll, Senate Democrats Re-up Their Dark-Money Disclosure Bill—and Dare GOPers to Block It, Mother Jones (June 24, 2014).
  6. One-Pager, The DISCLOSE Act of 2018, Office of Senator Sheldon Whitehouse (2018).
  7. John Bresnahan, Dems close to campaign finance deal, Politico (June 14, 2010).
  8. H.R.5175 - DISCLOSE Act, 111th Congress (2009-2010), Congress.gov.
  9. "FINAL VOTE RESULTS FOR ROLL CALL 391". House.gov. June 24, 2010. Retrieved 2012-07-20.
  10. S.3628 - Democracy is Strengthened by Casting Light on Spending in Elections Act, 111th Congress (2009-2010), Congress.gov.
  11. Paul Kane, As DISCLOSE Act stalls, Super PAC reserves $6 million in ad time for House races, Washington Post (July 16, 2012).
  17. The State of Campaign Finance Policy: Recent Developments and Issues for Congress, Congressional Research Service (updated December 13, 2018), pp. 5-6.
  18. Catie Edmondson, House Democrats Will Vote on Sweeping Anti-Corruption Legislation. Here's What's in It., New York Times (March 7, 2019).
  19. Kate Ruane & Sonia Gill, Congress, Let's Fix the Problems in H.R. 1 So We Can Enact the Bill's Much-Needed Reforms, American Civil Liberties Union (March 5, 2019).
  20. H.R.1 - For the People Act of 2019, 116th Congress (2019-2020), Congress.gov.
  21. "The DISCLOSE Act". Speaker of the House Nancy Pelosi. April 29, 2010.
  22. Rebuttal of Attacks on Dark Money Disclosure Requirements in H.R. 1 (press release), Common Cause (March 4, 2019).
  23. Ted Barrett, Senate Republicans block DISCLOSE Act for second straight day, CNN (July 17, 2012).
  24. "Senate Democrats Unveil Legislation To Limit Fallout From Supreme Court Ruling That Allows Unlimited Special-Interest Spending On Elections—Announce Plan For Senate Passage By July 4" (Press release). United States Senate Committee on Rules and Administration, Minority. April 29, 2010.
  25. "Statement by the President on Passage of the DISCLOSE Act in the House of Representatives" (Press release). White House Press Office. June 24, 2010.
  26. Scott Zimmerman, Democrats Reintroduce DISCLOSE Act to Combat Dark Money "Poison", Center for Media and Democracy (July 10, 2018).
  27. Russell Berman, Dems face backlash from liberal groups over NRA deal, The Hill (June 15, 2010).
  28. Nancy Watzman, NRA fights campaign finance reform, disclosure, Sunlight Foundation (January 15, 2013).
  29. "Statement by AFL-CIO President Richard Trumka on Proposed 'DISCLOSE Act'" (Press release). April 29, 2010. Archived from the original on July 11, 2010.
  30. Kevin Bogardus (May 24, 2011). "AFL-CIO leader gives blessing to disclosure order on donations". The Hill.
  31. Rosalind S. Helderman, DISCLOSE Act, new donor transparency law, blocked in Senate, Washington Post (July 16, 2012).
  32. "U.S. Chamber Calls Passage of DISCLOSE Act an Assault on Freedom of Speech" (Press release). U.S. Chamber of Commerce. June 23, 2010.
  33. National Federation of Independent Business Letter in Opposition to DISCLOSE Act (June 22, 2010).
  34. "ACLU Urges No Vote On DISCLOSE ACT" (Press release). American Civil Liberties Union. July 26, 2010.
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