President Joe Biden’s latest anti–free speech crusade would require groups that run political ads to dox donors. Biden is backing the Democracy Is Strengthened by Casting Light on Spending in Elections (DISCLOSE) Act, which senators are expected to vote today on whether to take up.
“Right now, advocacy groups can run ads on issues attacking or supporting a candidate right until Election Day without exposing who’s paying for that ad,” Biden said on Tuesday. Senate Majority Leader Chuck Schumer (D–N.Y.) called the DISCLOSE Act “critical to fighting the cancer of dark money in our elections.”
But many see the measure as a way to interfere in free speech and intimidate people who would otherwise donate to advocacy groups.
The U.S. Chamber of Commerce called it “blatantly political and ultimately unconstitutional legislation.”
“The DISCLOSE Act’s fundamental purpose is to enable cancel culture and the intimidation of Americans exercising their right to free speech through political giving and campaign contributions,” writes Scott Parkinson of the Club for Growth.
I think Parkinson is right. When it comes to ads or other public campaigns concerning political issues, those on the opposite side are free to counter their content and ideas in the public square without knowing who donated to the groups behind the ads. But if the donors are known, it allows people to pressure them not to donate. It also allows for smear campaigns against political positions based who supports them, instead of the content of their messages or proposals. It seems designed to detract from actually informing voters, allowing for the battle over bills and issues to be played out instead in a guilt-by-association manner.
The DISCLOSE Act (S.443) is sponsored by Sen. Sheldon Whitehouse (D–R.I.) and includes all sorts of provisions related to campaign communications and election-related spending. The most controversial part says that “any covered organization that makes campaign-related disbursements aggregating more than $10,000 in an election reporting cycle”—that is, a two-year period—must report to the Federal Election Commission the names and addresses of people who donated to the organization during that period, if the donors gave more than $10,000 within those two years. (If the group has a separate bank account for election-related spending, it need only disclose donors who gave to that fund.) Covered organizations include for-profit corporations, nonprofit groups, labor groups, political committees, and other political organizations.
A “campaign-related disbursement” might sound like it means a direct donation to a political campaign, but no. It includes any “independent expenditure which expressly advocates the election or defeat of a clearly identified candidate for election for Federal office, or is the functional equivalent of express advocacy because, when taken as a whole, it can be interpreted by a reasonable person only as advocating the election or defeat of a candidate for election for Federal office.”
Because of the vague way it’s worded, this could include not just direct appeals for or against candidates but also issue advocacy if the issue in question is one prominently tied to a particular candidate. The requirement also applies to communications “promoting, supporting, attacking, or opposing the nomination or Senate confirmation of an individual as a Federal judge or justice.”
Notably, it requires disclosure of donors to the group even if they did not directly pay for or know about the group’s public communications covered by this act.
This bill could prove especially tricky for donors to pro-choice groups as conservatives move to rewrite the legal framework around abortion and seize on communications that promote it. It could also prove detrimental to groups advocating for a number of controversial topics, such as sex work decriminalization, LGBTQ rights, or criminal justice reform.
In general, the requirement could make some donors less likely to give—at least in amounts above $5,000 per year—or make the advocacy groups less likely to engage in certain sorts of public communication. In this way, it could have a major chilling effect on free speech.
“Anonymous participation is a critical element of our political process. Many transformative ideas and just causes, unpopular or controversial in their time, relied on anonymous arguments to the ultimate benefit of us all—from the abolition of slavery to the fight for Civil Rights,” says the R Street Institute, a public policy think tank. “The DISCLOSE Act eliminates the ability to participate in the political process as the Founders intended, free from intimidation or harm.”
So far, it’s largely been libertarian and conservative groups opposed to the DISCLOSE Act—at least this round. But the American Civil Liberties Union has come out repeatedly against previous versions of the DISCLOSE Act.
Democrats have been introducing some version of the DISCLOSE Act for more than a decade. “It feels like we’re living though ‘Groundhog Day’ if Senate Democrats are holding another vote on the DISCLOSE Act,” Republican lawyer Michael Toner told Roll Call. “All indications are that history will repeat itself yet again and the legislation will fail on the floor.”
The DISCLOSE Act’s decade-plus of failures might make it seem like a nonentity. But the fact that Democrats keep coming back to it is notable, and suggests it’s not to be discounted entirely. (A lot of bad bills get introduced again and again before finding the right news or culture-war hook to make them stick.)
Besides, it fits a pattern of Biden administration attempts to regulate and squelch free speech under the guise of protecting the electoral process and/or democracy. This is the go-to explanation for Biden-backed policies that arguably run afoul of the First Amendment, from pressuring social media platforms to censor certain sorts of information to expressing interest in taking away Section 230 protection for platforms that run ads Biden thinks are bad to setting up the creepy (and thankfully thwarted) Disinformation Governance Board in the Department of Homeland Security.
“Requiring politically active groups to disclose all their donor information will not lead to fairer elections. Rather, it will lead to less speech, more harassment and political violence, and a less informed electorate,” suggests FreedomWorks (noting that Biden didn’t disclose anonymous donors to his 2020 election campaign).
Significant portions of the DISCLOSE Act “would violate the privacy of advocacy groups and their supporters—including those groups who do nothing more than speak about policy issues before Congress or express views on federal judicial nominees,” said Institute for Free Speech president David Keating in July testimony before the Senate Committee on Rules and Administration.
The bill’s “provisions are so complex and open to so many possible interpretations that our analysis of the provisions may well understate the chill this legislation might place on the exercise of our First Amendment rights,” Keating added. “The best way to give the people a voice and to protect democracy is to protect and enhance the rights to free speech, a free press, assembly, and petition guaranteed by the First Amendment.”
FOLLOW-UP
Russians fleeing, protesting. Following Russian President Vladimir Putin’s announcement that Russian reservists would be conscripted to fight the war in Ukraine, some people have been fleeing the country and many others have been protesting. “Flights to the few cities abroad still offering direct service to Russia — most destinations have been cut off by sanctions — were suddenly sold out,” reports The Washington Post. Meanwhile, more than 1,300 people were reportedly arrested for protesting, according to independent protest-monitoring group OVD-Info.
FREE MINDS
Drag shows are protected speech. “Two student groups at Tennessee Tech University are now facing an investigation after hosting a drag show at an on-campus theatre,” reports Reason‘s Emma Camp:
On August 20th, local organization Upper Cumberland Pride and two university student groups, the Lambda Gay-Straight Alliance and the Tech Players, held a drag show at the university’s Backdoor Playhouse….
However, there is one hitch to Tennessee Tech’s plans—they have no legal authority to punish student organizations over a drag performance.
On September 15th, the Foundation for Individual Rights and Expression sent a letter to Tennessee Tech’s administration, informing the school that drag shows are expressive content protected by the First Amendment, and as a public university, Tennessee Tech cannot punish students for hosting them.
More here.
FREE MARKETS
???? Rep. @RashidaTlaib asked all major bank CEOs to submit to her ESG agenda and stop funding fossil fuels.
Their response?
JPMorgan Chase CEO Jamie Dimon: “Absolutely not and that would be the road to Hell for America.” pic.twitter.com/rGX7EjrVZj
— Consumers’ Research (@ConsumersFirst) September 21, 2022
QUICK HITS
The 2021 National Crime Victimization Survey just came out today. More important than usual, given the shambles our reported-crime data is in.
The top-line: victimization rates are almost all at 5-year lows, and all below 2017-2019 levels (2020 was a … strange year). pic.twitter.com/uFomYo7aLx
— John Pfaff (@JohnFPfaff) September 20, 2022
• The U.S. House of Representatives has passed reforms to the Electoral Count Act. Read more about the bill here and here.
229-203: The House has PASSED the Presidential Election Reform Act to reform the Electoral Count Act.
NINE Republicans voted in support. None of those nine are returning to Congress next year, either because they lost primaries or are retiring. pic.twitter.com/f15tyia9ZK
— Kyle Stewart (@KyleAlexStewart) September 21, 2022
• Texas Gov. Greg Abbott has issued an executive order declaring Mexican cartels to be terrorists and ordering law enforcement to identify and seize assets from gangs that support them. The move seems tailor-made to allow for guilt-by-association punishment, where groups can be targeted (and have their assets seized) merely for having some vague affiliation with a group Texas has declared to be terrorists.
• Courts must now consider a doctor’s intention when ruling on whether doctors are guilty of violating drug laws for writing prescriptions to opioids.
• Are Ron DeSantis’ migrant flights legal?
• As a college student, John Gibbs—now a Michigan Republican candidate for Congress who is backed by former President Donald Trump—founded a Society for the Critique of Feminism that questioned whether women should have the right to vote.
• Arizona Gov. Doug Ducey condemned the “dangerous strain of big government activism [that] has taken hold” in the Republican Party. A “good many small government conservatives have morphed into bullies – people who are very comfortable using government power to tell companies and people how to lead their lives.”
• A federal appeals court says the Department of Justice can resume going through documents seized from Trump. “In a strongly worded 29-page decision, the United States Court of Appeals for the 11th Circuit set aside key parts of an order by a Florida federal judge that has kept the department from using about 100 files with classification marking,” notes The New York Times. “The appeals court also agreed with the Justice Department that Mr. Trump’s lawyers — and an independent arbiter recently appointed to review the seized materials — need not look at the classified documents that the F.B.I. carted away from Mr. Trump’s estate, Mar-a-Lago, on Aug. 8.”
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