By Peter Roff, Thomas Jefferson Street blog
The U.S. Supreme Court’s decision in the now famous Citizens United v. FEC restored the ability of corporations to exercise their rights to political speech under the First Amendment. Congressional Democrats--who didn’t very much like the decision--have responded to it with the Disclose Act, legislation that, as written, not only would overturn the court’s ruling but would greatly expand the range and scope of the prohibitions on free speech that existed before the case was decided. But political maneuvering by the Democrats intended to circumvent the opposition of the National Rifle Association (NRA) and ensure the bill's passage may end up killing it.
Leaving aside the usual liberal mantra that the decisions of the nation’s highest court regarding constitutional liberties are the last word on the matter, what the Democrats are seeking to do infringes on the rights of corporations, including but not limited to those expressly formed for the purpose of political advocacy, to make independent campaign expenditures in furtherance of their views.
In an open letter to members of Congress, the National Right to Life Committee, a group with a long history of support for the First Amendment rights of political organizations, explains that the bill is not, as its sponsors contend, merely an exercise in making sure groups make information about themselves and their donors available which, in Congress’ judgment, the public needs to know. It is actually about discouraging “as much as possible, disfavored groups (such as the NRLC) from communicating about officeholders by exposing citizens who support such efforts to harassment and intimidation, and by smothering organizations in layer on layer of record keeping and reporting requirements, all backed by the threat of civil and criminal sanctions.”
What the Disclose Act proposes to do, therefore, is constitutionally dubious but politically advantageous to the Democrats. As written, it includes numerous “carve outs,” for groups like labor unions which are part of the party's electoral and political constituency, that exempt them from the wide-reaching dictates of this new law.
Another group that now finds itself exempt from the dictates of the Disclose Act is the 4.5 million-member National Rifle Association, which has a long history of defending against attacks on the First Amendment that would impair its ability to defend the Second Amendment.
In late May the NRA’s Institute for Legislative Affairs’ Chris Cox wrote to Congress identifying its concerns about the proposed legislation, including language that would, he wrote, “leave it in the hands of government officials to make a determination about the types and amounts of speech that would trigger potential criminal penalties.”
The NRA’s position created a problem for the Democratic leadership in the House. They found, probably much to their surprise, that they could not muster enough votes to pass the bill as long as the NRA was actively opposed to it. Indeed, the leadership had expected to have everything wrapped up before the Memorial Day recess but, in light of the NRA’s opposition, had to pull the bill from consideration.
[See which members of Congress get campaign contributions from gun rights groups.]
Under pressure from Democratic House members who did not want to cross the NRA and in a calculated move designed to split the conservative opposition to it, the leadership simply added a section to the bill that, as written, exempts the NRA--and apparently only the NRA--from the strictures of the Disclose Act.
Democrats on the Hill, as well as some Republicans, now say that without the NRA’s active opposition, the bill is more likely to pass the House. In something of an irony, the Republicans are angrily attacking the NRA, unfairly accusing it of cutting a deal in its own interests instead of focusing their sights on the Democrats, who came up with a clever way to cleave the opposition in two.
It may, however, all be for naught. The same maneuver than made it more likely to get the legislation through the House may have doomed its chances of passing the Senate. California Democrat Diane Feinstein, a longtime opponent of Second Amendment rights, has come out strongly in opposition to the NRA’s proposed exemption.
Calling it “bad policy,” she took a shot at the NRA, alleging that the so called carve out amounted to “special interest No. 1 receiving a deal to exempt it” from a bill designed to “make sure that elected representatives are not beholden to special interests.”
Feinstein’s opposition has created a new crisis for House leaders as well. As Roll Call reported Thursday, “Facing wide-ranging blowback from an exemption tailored for the National Rifle Association, House Democratic leaders have decided to expand the carve-out from disclosure requirements in a campaign finance measure they are trying to pass this week.”
“The new standard,” the paper said, “lowers the membership requirement for outside groups from 1 million members to 500,000. Those groups would still need to have members in 50 states, have existed for 10 years and can accept no more than 15 percent of their funding from corporate or union sources.”
With Feinstein in opposition, the GOP may now be able to sustain a filibuster of the Disclose Act on the Senate floor, given that she is one of a small handful of Democrats who would rather fight the NRA--on principle as well as for its political value--more than they would like to muzzle conservative advocacy groups. With the exemption the bill passes the House and may fail in the Senate. Without the exemption, it cannot pass the House, leaving the Democrats in a box no matter what the NRA does.