Senate Majority Leader Harry Reid scheduled a second vote on the DISCLOSE Act for Thursday. Rather than address the 14.4 percent unemployment in his home state of Nevada, he wants to regulate political speech through hastily cobbled together campaign finance legislation. This legislation would impose a burdensome new disclaimer and disclosure regime on speakers who seek to exercise their First Amendment right to political speech.

The DISCLOSE Act is a desperate attempt to respond to the Supreme Court’s decision in Citizens United v. Federal Election Commission. In Citizens United the Court embraced the First Amendment protection of political speech. Now groups of Americans may stand together and speak, regardless of whether they have sought the protection of a corporate form, labor union, or non-profit organization.

Fearful of how these groups of Americans may exercise this right, Senator Schumer, Representative Chris Van Hollen, and leaders of the Democratic Party sought to create a burdensome new disclosure and disclaimer regime to make it difficult for Americans to exercise these rights. Senator Schumer is hopeful that the legislation will result in fewer political ads being run.

The DISCLOSE Act was crafted behind closed doors with the input of Democratic lobbyists. Labor unions and large special interests groups including the National Rifle Association were afforded special exemptions from various provisions of the bill. This partisan legislation is an assault on the First Amendment, and principled conservative groups like Citizens United were right to oppose it.

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When Senator Chuck Schumer staged an elaborate press conference on the steps of the Supreme Court to unveil his Democracy is Strengthened by Casting Light on Spending in Elections Act (“DISCLOSE Act”) he noted that:

“Anyone who wants to hide, will not do an ad after this legislation passes. And I think there are a lot of people who like to hide … so I think there’ll be many fewer of them.”

His words revealed the true motivation of this legislation – it is not transparency but rather silencing speech in this critical election year.  The Supreme Court in Citizens United v. FEC restored the First Amendment protection to political speech.  Small businesses, corporations, unions, and membership based organizations may now have a voice in the public discourse.  The Democratic leadership that is tasked with re-electing incumbent politicians and trying to minimize Democratic losses this November were understandably fearful of what the public may say now that their voices have been restored.  One issue the Democrats would rather not let the American people be reminded of is the national 9.5% unemployment rate.

Their solution was the DISCLOSE Act, a piece of legislation that creates a burdensome new regulatory scheme as well as requires that political ads feature disclaimers which may be as long as 14 seconds in length.  This will increase the costs to small businesses and membership based organizations that seek to have a voice – many won’t be able to afford the additional compliance costs and will have their voices silenced.

In the four months since Senator Schumer introduced the DISCLOSE Act, we’ve seen it is just one part of a systemic campaign to chill political speech.

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Well, folks, this is bound to happen more and more as time rolls onward in this New Media world of ours. A blogger is in trouble with local Ohio officials who are trying to Shut him down using a badly applied campaign finance law all because he has been critical of county officials on his blog. That’s right, a county board is trying to silence the free political speech of a local Ohio blogger because he is critical of them.

The Geauga County Board of Elections has filed charges against the owner of the Geauga Constitutional Council blog, independent blogger Ed Corsi. The Board claims that Corsi’s pseudonymously published blog violates O.R.C. 3517.20(A)(2), a code meant to assure that political campaign publications, signs, and handouts have their source transparently identified.

The reason the Board is going after Corsi is because he publishes on his blog critical assessments and lists of local officials that he calls “R.I.N.O.S.” Board officials feel that because he does not affix his name to his blog posts he is violating the transparency rules.

However, Corsi is just an independent blogger and is not a paid operative of any party or campaign and all his blogging expenses are paid for with his own funds. The 1851 Center for Constitutional Law and the Rutherford Institute, non-profit legal advocacy firms, filed arguments with the OEC on behalf of Corsi saying that the Board of Elections overreached the application of the law in this case.

“This case has the potential to severally limit free speech in Ohio,” said 1851 Center Executive Director Maurice Thompson. “Should independent bloggers in Ohio be subject to registration, political disclosure laws, and fines simply because they discuss Ohio politics, and are critical of certain politicians? The Constitution says otherwise.”

“When applied to Corsi’s activities, the law violates the First Amendment right to anonymous political speech,” said Thompson. “It places an impermissible prior restraint on core political speech. And, it applies an overbroad regulation and/or prohibition on political speech that is not express advocacy.”

Clearly the Board is reaching in this case. This code is meant to make sure that politicians don’t get the unrevealed assistance of secret financial backers in elections and is not meant to quash the free speech of lone citizens like Corsi that have a blog and want to spout off about local politics.

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Today the Senate returns to session having not yet addressed Senator Chuck Schumer’s troubling legislation, the Democracy is Strengthened by Casting Light on Spending in Elections Act (“DISCLOSE Act”).  Senator Schumer sought and failed to pass the DISCLOSE Act – a bill that would restrict the First Amendment rights of Americans – by the Fourth of July, the day on which we celebrate our nation’s independence.

The DISCLOSE Act is a desperate attempt to influence the November elections, and minimize Democrat losses.  Senator Schumer and the legislation’s other sponsors aim to have a law on the books that will take effect prior to November regardless of whether a regulatory system is in place to enforce the burdensome new reporting requirements.  The Act, its reporting burdens, and penalties are set to take effect 30 days after it has been signed by President Obama.

• The DISCLOSE Act will require small businesses, corporations, and non-profit organizations to electronically file burdensome financial disclosure reports within 24 hours of making an independent expenditure.  Without action by the FEC, these groups will have to electronically file a form that does not yet exist, and face a $10,000 penalty should their filing be found inadequate.

• Radically expand the length of disclaimers on televised political advertisements.  The Act will compel the head of an organization to appear on screen in a “stand by your ad” disclaimer.  The top donor to an organization will also have to appear on camera to stand by the ad.  The names of additional top donors to the organization must be listed on screen for a period of six seconds.  These disclaimers will be the end of the 30 second advertisement, because over half of the time will be devoted to disclaimers.

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If the First Amendment protects anything, it protects the right of all Americans to speak to one another about politics without first having to register with the government.  Unfortunately, ever-increasing layers of red tape and regulation are strangling the political speech and participation of more Americans while offering little or no benefit to the public.

One of the most pernicious attacks on the basic First Amendment rights to speak, associate and petition the government are so-called grassroots lobbying laws.  (For an overview of these laws and what makes them so bad, watch this brief video:  http://ij.org/ 3368.)  But what bureaucrats and campaign finance reformers call “grassroots lobbying” is nothing more than one of the most basic acts of self-governance:  citizens discussing issues of public importance among themselves.

As many as 36 states impose heavy burdens on grassroots political activism—burdens that discourage citizens from even bothering to participate in the political process.

For example, in Washington state, if you get together with a couple of friends and create an informal group to encourage others to contact their legislators and oppose more taxes, the government forces you to register and report the name, address, business and occupation of each of the group’s organizers, as well as the names and addresses of anyone with whom the group is working to spread its message.  The state also demands to know the names and addresses of each person who contributes as little as $25 to your efforts.  After the government collects this information, it makes your personal information and political activities available to anyone with a computer and access to the Internet.

Spending $500 in one month or $1,000 in three months—a couple of trips to Kinko’s to print flyers or hosting one community barbeque—will trigger the registration and reporting requirements of the law.

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