The Right Opinion

In Disclose Act, a Free Speech Clamp

By George Will · Jul. 11, 2010

WASHINGTON – Two splendid recent developments have highlighted how campaign finance “reforms” have become the disease they pretend to cure. In Arizona and in Congress, measures ostensibly aimed at eliminating corruption or the “appearance” thereof illustrate the corruption inherent in incumbents writing laws that regulate political competition by rationing political speech.

The Supreme Court has blocked implementation of Arizona’s Clean Elections Act. Under it, candidates who accept taxpayer funding of their campaigns receive extra infusions of tax dollars to match funds raised by competitors who choose to rely on voluntary contributions. The law punishes people who do not take taxpayer funds. Its purpose, which the Supreme Court has said is unconstitutional, is to restrict spending – and the dissemination of speech that spending enables – in order to equalize candidates' financial assets. This favors incumbents, who have the myriad advantages of office. And it is patently intended to cripple candidates funded by voluntary contributions: Who wants to give to a candidate when the donation will trigger a nearly dollar-for-dollar gift to the candidate – or candidates – the contributor opposes? Just as the new health care legislation is a step toward elimination, by slow strangulation, of private health insurance and establishment of government as the “single payer,” laws like Arizona’s are steps toward total public financing of campaigns – government monopolizing funding for campaigns that determine the control of government.

In Congress, Democrats have not yet put the final blemishes on their proposal for restricting political advocacy, the Disclose Act (a clunky acronym –Democracy Is Strengthened by Casting Light on Spending in Elections), but already it is so awful it is excellent. Its nakedly partisan provisions, and the squalid process of trying to ram it into law, illuminate the corruption that inevitably infects what is supposed to be a crusade to purify politics: When constitutional rights are treated as negotiable, the negotiations corrupt the negotiators.

The National Rifle Association began a bizarre bazaar when it told Democrats it would not oppose Disclose if it exempts entities with a cynically constructed set of attributes that only the NRA has. When other interests howled, Democrats began tweaking the bill to enlarge eligibility for membership in the category of groups that will have broader speech rights than others do. The NRA’s intellectual ludicrousness and moral disarmament is in arguing that the Second Amendment’s protection of the right to bear arms is absolute, but the First Amendment’s protection of free speech (“Congress shall make no law” abridging freedom of speech) is for favored groups to negotiate with … Congress.

The campaign-reform community’s self-inflicted disgrace with Disclose is not just in continuing to treat the First Amendment as a turkey to be carved. It also extends the blackout periods in which certain kinds of political advocacy are banned. The increasingly opaque apparatus of political speech regulation that Democrats favor is beginning to resemble the rococo tax code. The contrast with the First Amendment’s limpid simplicity would cause reformers to blush, if they were capable of embarrassment.

For all its faults, some of which the Supreme Court has declared unconstitutional, McCain-Feingold was at least evenhanded: It favored incumbents but did not contain provisions overtly intended to secure partisan advantage. Democrats are rushing to enact Disclose to control this November’s elections and before the Supreme Court can adjudicate its dubious constitutionality. They are betting that Republicans will be unable to get quick injunctive relief.

McCain-Feingold supporters could at least claim that they had evidence of a need. They said their law responded to decades of experience with supposed defects of the existing system. Disclose, however, is a putative cure for a hypothetical ailments. They are those which Democrats assert, without evidence, will result from the Supreme Court ruling that unions and corporations – including nonprofit advocacy corporations, from the NRA to the Sierra Club – have a First Amendment right to independent (not coordinated with candidates' campaigns) political advocacy. Disclose is a compendium of burdensome regulations and mandates designed to largely nullify the court’s ruling for corporations. It leaves unions largely free to continue spending on behalf of Democrats.

Beware when the political class preens about protecting us from “special interests.” The most powerful, persistent and anti-constitutional interest is the political class. Bradley Smith, former chairman of the Federal Election Commission, says Disclose should stand for Democratic Incumbents Seeking to Contain Losses by Outlawing Speech in Elections. It is a reason for voters to multiply those losses.

© 2010, Washington Post Writers Group

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19 Comments

joe bradbury said:

The founding fathers must be rolling over & over& over in their graves....

Sunday, July 11, 2010 at 9:12 AM

Jimmy D said:

This is what we celebrate now:Evil, when we perceive it as so obvious that even the addled (we imagine) can't help but see it.

Sunday, July 11, 2010 at 9:28 AM

MARINE said:

Soon, as all imigrants commenly refer to their homeland as the :Old Country:, we will to, be refering to the US in the same manner.

Sunday, July 11, 2010 at 9:43 AM

Dave in SoCal said:

The so-called Disclose act is no doubt a disgrace, and unconstitutional to boot.But please stop with the criticism of the NRA. They are a 2ND amendment lobbying group, and to maximize their effectiveness they need to maintain complete focus on that objective. Politicians need to know this: support the 2nd amendment and the NRA will support you, don't support the 2nd amendment and you will incur the wrath of NRA. Inject a more complex political calculus that includes other issues and immediately we'll see political horsetrading. Some pols will decide they can maintain NRA support even if they tread on the second by supporting some other secondary issue. And make no mistake, in the long run all other issues are secondary.

Sunday, July 11, 2010 at 11:01 AM

Chad said:

I agree with Dave. To be sure, it is philosophically troubling to fight something unconstitutional that only affects one of the many liberties at stake, but the NRA's chief concern is the second amendment. The NRA exists for the same reason as an organization that focuses on first amendment rights. All these organizations which fight for our liberties tie together, but remain frugal in deciding which battles to fight. This is a smart move because the left has quite a few billionaires to fund their coffers. If the NRA succeeds in destroying this bill simply by persuading congress to take their name off the list, that is a testament of the NRA's power represented by its members. Thus, congress does not fear the "NRA", they fear the people as they should.

Sunday, July 11, 2010 at 11:57 AM

M Rick Timms MD in Georgia said:

Dave and Chad,I am not sure I understand your reasoning. I am both a "free speaker" and a NRA member. I am a gun owner, active sport shooting enthusiast and a member of multiple organizations active in protecting the rights of gun owners in State legislatures. I am very troubled by the concept that some of our Constitutional rights are more negotiable than others.I do not share your inclination to believe that the NRA intends to scuttle the very bill that it has helped formulate. What leads you to believe that the NRA intends to use it's political leverage to make sure that this bill is not passed? Perhaps I have missed that part. Rather, it appears to me that the NRA has acted to establish itself as the sole voice of the American gun owner, to the exclusion of all others. If the NRA is so "focused"on the Second Amendment that they are willing to deny my rights under the First Amendment ( unless I express myself though annual dues to their organization ) then they do not deserve - and will no longer receive my support.If the NRA is willing to forsake the First Amendment then why should anyone else not be willing to eliminate the Second Amendment.DISCLOSE is a very bad law. The involvement of the NRA makes it even worse - for all of us.

Sunday, July 11, 2010 at 12:59 PM

Hondo in Great Stinking Desert, Baja Arizona said:

My rights, all of them, are NOT NEGOTIABLE. PFD. Justice Story succinctly explained the 2nd Amendment as "The palladium of our liberty..." Rocket science is not required to understand why this is so. Keep your powder dry, Patriots!Semper Fi!

Sunday, July 11, 2010 at 1:30 PM

Howard Last in Wyoming said:

I figured out how McCain-Feingold is supposed to work. Most politicians are crooked. If you prevent the people from saying they are crooked, they will become honest.

Sunday, July 11, 2010 at 1:35 PM

enemaofthestatistquo said:

I cleaned my injunction last night, put it back in the closet with a full magazine, & for NOw the safety is ON. The reason the 1st amendment includes more than one listed Right is because the 2nd is the most essential. Speech, Assembly, Petition, Religion of the 1st may only be guaranteedby the 2nd, & their is not a person alive that does not want some others to keep their opinions about just about any subject to themselves, or not to be bothered to convert to another opinion. But it does amaze me that anyone would be offended if I speak, or assemble, or petition on behalf of my religion- faith, grace, redemption- that I, perhaps a stranger should care about their soul, whether they believe or not.

Sunday, July 11, 2010 at 3:20 PM

Dave in SoCal said:

Rick - I'm not at all in favor of the Disclose Act, nor was I in favor of McCain-Feingold. I believe all of our rights are equally important, and none are negotiable. The issue I was trying to raise was about the NRA's actions.I've heard many conservative commentators criticize the NRA for their actions surrounding the Disclose Act. In truth, my first reaction in hearing the NRA was dropping their objections was similar. On reflection though I think they are acting in the best interests of their members. I did not join the NRA to have them fight for the entirety of my rights. Rather, I "hired" them to protect my 2nd ammendment rights. I believe that they need to maintain that focus to be as effective as they possibly can be. The NRA initially opposed the Disclose act because as originally written it would have directly affected their ability to communicate on their core 2nd amendment issue. Once they were exempted they were no longer affected. At that point they dropped their objections, which is different than supporting the act BTW. They simply said they would not expend resources to fight the act. Now, imagine the NRA had continued to object to Disclose. Further, suppose we have a politician that has been a reliable 2nd amendment supporter who supports the Disclose act (perhaps typical of many Blue Dog Dems). How should the NRA behave towards that politician? Suppose they advise their members to vote against that politician based on his support of the Disclose Act, and suppose he wins anyway. How will that politician react towards the NRA the next time a 2nd amendment issue is on the table? Is it possible he might tell them "Hey, I was a reliable supporter of the 2nd amendment, and in the last election you did not support me based on another unrelated issue. Why should I support you now?"So, that's why I am OK with the NRA's position to focus on 2nd amendment issues to the exclusion of all others. It's the only way for them to continue to be maximally effective as a protector of our 2nd amendment rights.Again, it's not about whether one right is more important or more negotiable than another - they are all equally important and equally non-negotiable. Rather, my concern is how can the NRA best protect my 2nd amendment rights.

Sunday, July 11, 2010 at 6:15 PM

M Rick Timms MD in Georgia said:

DaveThanks for the reply. I am simply not willing to give up First Amendment rights in hopes that the NRA will do the right thing with regard to helping protect my Second Amendment rights. Not sure who your Representatives / Senators are, but part of the problem may be that they are "Blue Dog" DEMOCRATS.I have said many times - so called "conservative" Democrats will vote as DEMOCRATS first- and only as Conservatives if there are enough votes that the Democrat leadership lets them vote as a conservative. Plus, any Democrat will count as one when deciding committees and chairmanships. As Governors, Democrats will replace elected Republicans ( should they die in office) with Democrats - It has happened before and has changed control of the US Senate. ( Roy Barnes replaced Paul Coverdell with Zell Miller )I respectfully suggest that you get rid of the democrats and then you won't have to worry about paying the NRA to chip away at your free speech while arguing for your gun rights.

Sunday, July 11, 2010 at 7:51 PM

Dave in SoCal said:

Rick - Ha! Nice thought! I live in CA. My Senators and Governor are hopeless on all counts, and I'm afraid they always will be. My Representative is Gary Miller(R), and I've mostly been happy with his positions (he is a reliable 2A supporter).This will drive you up the wall: There is a better than 50/50 chance I will vote for Jerry Brown for governor. Meg Whitman has the R label, but I believe she will behave like a statist/Democrat, and further will sign every cockamamie gun control bill our crazy legislature puts on her desk (typically 2-3 per year). Whitman is not running to give liberty to the people, she is running to gain power for herself.Brown on the other hand has a history of being frugal with our tax dollars, and is at least a reasonably strong supporter of the 2A. Google around and read his amicus brief to the SCOTUS in support of incorporating the 2A against the states, a brief he wrote himself over the objections of his CA DOJ staff. During his time as CA AG he has made some administrative changes in the CA DOJ that have furthered gun rights for us here in CA.If the race appears close I may vote for Brown, if not I will vote Libertarian. I've about had it with the Republican party as I often can barely tell the difference between them and the Dems.

Sunday, July 11, 2010 at 11:46 PM

Brian said:

Dave, Chad and EVERYONE,Have you forgotten the words of Martin Neimoller, regarding the Nazi's actions during WWII? Once the small guys are out of the way, whose to say they won't go after the 'big fish' (NRA) later on????To quote Martin:"THEY CAME FIRST for the Communists,and I didn't speak up because I wasn't a Communist.THEN THEY CAME for the trade unionists,and I didn't speak up because I wasn't a trade unionist.THEN THEY CAME for the Jews,and I didn't speak up because I wasn't a Jew.THEN THEY CAME for meand by that time no one was left to speak up."Obviously the NRA has forgotten this bit of history.

Monday, July 12, 2010 at 7:51 AM

Dave in SoCal said:

Brian - I am also reminded that before the Nazis came for anyone, they came and took their guns.

Monday, July 12, 2010 at 10:01 AM

Rod in USA said:

Dave, Chad, Rick and Brian:Excellent posts on this subject. It saddens me greatly that we have progressed to this point in history, a point where the foundations of freedom and liberty are so mis-understood and threatened by many. It is also a point where our Constitutionally created government, created to serve the people, must be unequivocally regarded as being against the people.Concur that we need the 2nd ammendment to ptotect the others, in the long run. Let's hope that it does not truly come to that.Thanks.

Monday, July 12, 2010 at 12:16 PM