Need to Close the Door on DISCLOSE Again

The Supreme Court ruled earlier this year (in Citizens United vs. FEC) that company (and employee) voices were being unfairly silenced by the campaign finance rules that were in place. Democrats in Congress didn’t like what they heard so they attempted to make their way around the decision by coming up with the DISCLOSE Act. For those that care, the acronym (who has the job of coming up with these things) stands for Democracy is Strengthened by Casting Light on Spending in Elections.

Fortunately, the effort fell short of the 60 Senate votes needed to proceed. But bad ideas (in this case one of the worst ones to come down the pike in a long time, and that’s saying something in a city filled with questionable policy proposals) don’t simply go away. Indiana Chamber members communicated their displeasure the first time around.

CongressDaily reports the latest:

The DISCLOSE Act will head back to the floor for a vote when the Senate returns next month, according to spokespeople for Senate Majority Leader Harry Reid and Sen. Chuck Schumer, D-N.Y., the bill’s lead sponsor.

The measure would implement strict disclosure laws on campaign ads, require corporate leaders to appear in ads much like candidates and severely restrict foreign-owned companies and those that do business with the government. 

Senate Dems and their reform-advocate allies are targeting Sens. Scott Brown, R-Mass., Olympia Snowe, R-Maine and Susan Collins, R-Maine, all of whom voted against cloture last month. The 3 GOPers said the bill was rushed in an attempt to influence the ’10 midterms on Dems’ behalf.

Now, though, reform advocates believe they have removed that most significant objection all 3 GOPers had. If the measure is passed in late Sept. or early Oct., it would not go into effect until after the midterms.

Senate leaders have told their House counterparts that they will bring the bill up again, and that they may let GOPers block it one more time in order to score political points. But after the bill fails, reform groups and senators who back the DISCLOSE Act will try to convince potential GOP allies to join them in passing the bill so it might be implemented after the midterms.

Still, Snowe, Collins and Brown will face pressure from their leader even after it becomes clear the bill wouldn’t impact the midterms. Senate Minority Leader McConnell has been a vocal opponent of the DISCLOSE Act, labeling it a ploy to benefit Dems. McConnell has been successful in keeping his conference together on most controversial votes, making the bill’s prospects uncertain.

Dems also have to deal with Sens. Dianne Feinstein , D-Calif., and Frank Lautenberg , D-N.J., both of whom are opposed to a carve-out that exempts the NRA from certain disclosure provisions. Holman said there is an understanding that the 2 Dems would vote for cloture, getting Dems over the 60 votes required to move the bill to final passage, but then Lautenberg and Feinstein could vote against the final package. Lautenberg and Feinstein both voted for cloture when the bill first came up on July 27.


Two unrelated observations that come together in this case:

  1. Who is in charge of naming legislation that produces such memorable acronyms? The latest is the DISCLOSE Act, short for Democracy Is Strengthened by Casting Light On Spending in Elections
  2. Any time you can get 300 organizations to agree on something, it must be at an extreme — in this case the bad end of the spectrum

DISCLOSE is the 2010 version of card check, attempting to penalize business voices at the expense of unions. Card check dealt with union elections; DISCLOSE seeks to circumvent a Supreme Court decision and attack First Amendment rights by limiting the business voice in political elections.

The 300-plus organizations (chambers, economic development groups, associations and more) represent businesses of all types and size across the country. They combined to send a letter to all members of the U.S. House. A couple of excerpts below, and here is the full letter:

The legislation’s sponsors admit that the bill’s purpose is to deter corporations from participating in the political process. Senator Schumer has said the bill will make corporations “think twice” before attempting to influence election outcomes, and that this “deterrent effect should not be underestimated.”

Its provisions include a blanket prohibition on election-related speech by certain government contractors. Thousands of corporations regularly participate in contracts with the federal government; under Schumer – Van Hollen, many of them are categorically barred from making their political views known. The bill imposes no comparable restrictions on labor unions that receive federal grants, negotiate collective bargaining agreements with the government, or have international affiliates, even though unions and their political action committees are the single largest contributor to political campaigns and claim to have spent nearly $450 million in the 2008 presidential race.

Free Speech for All

Look at most polls and you’ll see voters are in a surly mood and wanting to boot incumbents out of office. So no one should have been surprised that congressional leadership wants to move fast to pass new restrictions on speech by those who might disagree with them.

It’s called the Democracy Is Strengthened by Casting Light on Spending in Elections, or “DISCLOSE Act.”  A long and cute title, but the bill is really designed to put duct tape over the mouths of businesses and trade associations. Labor unions and trial lawyers get a pass in the bill, an important preferential treatment with real election impacts.

For-profit corporations doing federal contract business, taking TARP money, or with as little as 20% overseas ownership would be flatly shut-out of making campaign communications. CEOs of any other corporations who tried to speak up would have to go on camera in any advertisement saying they approved the ad and could face criminal complaints. Independent expenditure ads by businesses and associations would be blocked from being on the air from April through November in Indiana.

For decades, federal campaign finance rules and “reform” packages like McCain-Feingold were crafted with some balance for corporations and labor unions. The DISCLOSE Act abandons this important balance and bipartisanship. There was no attempt at a bipartisan approach here, particularly with the current chair of the House Democrat Campaign Committee (Rep. Van Hollen) and immediate past chair of the Senate campaign committee (Sen. Chuck Schumer) actually authoring the bill.

Businesses and trade associations have First Amendment free speech rights, as reinforced by the U.S. Supreme Court in the landmark Citizens United ruling last year. That pesky First Amendment getting in the way of politicians again.

You can take action in fighting this legislation via the Indiana Prosperity Project.

Can Businesses Sue People Who Trash Them Online?

We’ve all had experiences as customers that have certainly led to some epic rants. And some of us have even taken those frustrations online, likely in an effort to either notify company executives or just connect with others who felt the same. But that has spawned an interesting question: Can companies take action against spurned customers who embellish their negative experiences. A New York Times article examines one case in Michigan:

After a towing company hauled Justin Kurtz’s car from his apartment complex parking lot, despite his permit to park there, Mr. Kurtz, 21, a college student in Kalamazoo, Mich., went to the Internet for revenge.

Outraged at having to pay $118 to get his car back, Mr. Kurtz created a Facebook page called “Kalamazoo Residents against T&J Towing.” Within two days, 800 people had joined the group, some posting comments about their own maddening experiences with the company.

T&J filed a defamation suit against Mr. Kurtz, claiming the site was hurting business and seeking $750,000 in damages.

Web sites like Facebook, Twitter and Yelp have given individuals a global platform on which to air their grievances with companies. But legal experts say the soaring popularity of such sites has also given rise to more cases like Mr. Kurtz’s, in which a business sues an individual for posting critical comments online.

The towing company’s lawyer said that it was justified in removing Mr. Kurtz’s car because the permit was not visible, and that the Facebook page was costing it business and had unfairly damaged its reputation.

Some First Amendment lawyers see the case differently. They consider the lawsuit an example of the latest incarnation of a decades-old legal maneuver known as a strategic lawsuit against public participation, or Slapp.

The label has traditionally referred to meritless defamation suits filed by businesses or government officials against citizens who speak out against them. The plaintiffs are not necessarily expecting to succeed — most do not — but rather to intimidate critics who are inclined to back down when faced with the prospect of a long, expensive court battle.

“I didn’t do anything wrong,” said Mr. Kurtz, who recently finished his junior year at Western Michigan University. “The only thing I posted is what happened to me.”

Many states have anti-Slapp laws, and Congress is considering legislation to make it harder to file such a suit. The bill, sponsored by Representatives Steve Cohen of Tennessee and Charlie Gonzalez of Texas, both Democrats, would create a federal anti-Slapp law, modeled largely on California’s statute.

Because state laws vary in scope, many suits are still filed every year, according to legal experts. Now, with people musing publicly online and businesses feeling defenseless against these critics, the debate over the suits is shifting to the Web. 

Ball State Study Examines Complex Issue of Schools and Social Media

Ball State University sent out a press release last week titled, "Study: Principals want to rein in student digital communications." It’s very interesting, so we thought we’d share:

MUNCIE, Ind. – Most high school administrators believe they have the right to control student messaging on and off school grounds even while social networking and digital communications have exploded in popularity among teens, says a new study from Ball State University.

A national survey of about 400 high school principals and administrators found that principals not only want to control e-mail, instant messaging, texting and Web sites, but also have the ability to punish students for irresponsible communications conducted outside of school.

"Principals are very apprehensive when it comes to digital communications, the Internet and certainly any types of emerging media that teens will embrace," said Warren Watson, director of J-Ideas, the First Amendment education institute at Ball State. He co-authored the study with Adam Maksl, a Ball State journalism instructor, and Vincent Filak, a former Ball State journalism professor now at the University of Wisconsin-Oshkosh.

The survey is part of a longitunal study that examines high school principals’ attitudes regarding free expression between 2004 and 2009. This was the first time principals were asked about their opinion on digital communications.

Watson said many principals indicated the urge to control communications among today’s teens, who have grown up in a world of cell phones, laptop computers and on-demand digital services.

"Many principals are much older and simply don’t want to deal with any type of digital communications," Watson said. "They wish it would all go away, but when a perceived problem pops up, they feel like they have to do something. So, they often punish first and ask questions later." Continue reading

You Want My Money to Do What?

What’s going on in Washington these days? In four simple words — money is being spent. (Some would add "at the expense of our future," but we’ll leave that discussion for another time.)

Since there is such a spending frenzy, maybe Illinois Sen. Dick Durbin thinks no one will notice as he tries to add a few billions to the tab in the Fair Elections Now Act. Who will benefit from this economic rescue, bailout or stimulus plan? It’s Durbin and his colleagues. He (representatives John Larson of Connecticut and Walter B. Jones Jr. of North Carolina deserve their spotlight in the Hall of Shame for introducing similar legislation in their chamber) wants mandatory use of public resources (taxpayer dollars) to fund congressional campaigns.

Why is this a bad idea? Just a few of the many reasons:

  • The presidential check-off system on tax returns never worked (it was voluntary; maybe that’s why Durbin wants to take your money without giving you a choice)
  • Durbin wants to tax government contractors, putting them in a position of having to fund political candidates with whom they might be vigourously opposed. Never mind that little item called the First Amendment
  • The House version calls for taking proceeds from Federal Communications Commission sales. This limited funding source is now being used to help reduce the ballooning federal deficit — a far more worthy cause
  • Elimination of the need to have at least some good, solid ideas in order to attract local, private sector funding. Instead, under these plans, meet some minimal fundraising requirements and the public coffers are open for your use — or abuse

I could go on. The Heritage Foundation does in a strong rebuttal. But it’s bills like this that unfortunately make so many people have so little confidence in our elected leaders. What are they thinking?