DISCLOSE Comes Closer to Senate Action


Senate Rules Committee members Thursday heard testimony on S. 2219, the Democracy Is Strengthened by Casting Light on Spending in Elections (DISCLOSE) Act of 2012.

That is the bill that would boost on-air disclosures of the CEOs of companies and individual donors behind ads from Super PACs and other groups now allowed to directly fund TV and radio spots for or against specific candidates for federal office.

Broadcasters are concerned that those requirements, as well as the potential length of the disclosures, could stem some of the flow of political ad dollars to local station coffers.

The hearing was an effort to tee up the bill for a floor vote. The chairman of the rules committee has a vested interest in that vote. It is Charles Schumer (D-N.Y.) who authored the act, as well as its predecessor, introduced soon after the Citizens United Supreme Court case that established that corporations, unions and nonprofits had a First Amendment right to political speech that extended to funding it.

There will be no action on the bill before the Easter/spring break since the record is remaining open 10 days for additional comment, but it was an opportunity to air out the pros and cons.

Among the cons, according to witness David Keating of the Center for Competitive Politics, was that it will suppress political speech. He argued that, in a radio ad for example, the disclaimers would take 20 seconds or a 30-second spot (think prescription drug ads), effectively becoming a disincentive to that speech. "Such absurdly long disclaimers would silence many groups" he said in his testimony, "or make the ads unaffordable."

Keating said the bill would also force nonprofits to radically alter their fundraising and public advocacy, that it would force them to pare back their ad copy to fit the message in with the disclaimer, that there were already spending disclosures in law, that to pass the law while the current election is in "full swing" would not allow the Federal Election Commission time to draft implementing rules -- a major criticism of the 2010 version as well -- and provides a vague definition of the functional equivalent of advocacy which he called a "an invitation to burdensome and costly investigations by federal officials."

Just as convinced that the bill was absolutely essential was Democracy 21 president Fred Wertheimer. He said the bill "restores a cardinal rule of campaign finance laws: citizens are entitled to know who is giving and spending money to influence their votes." He said the problem the bill was addressing was twofold: ineffectual FEC disclosure regulations and Citizens United.

While he conceded that campaign finance law already requires disclosure of independent expenditures on electioneering communications, he said the FEC had gutted the requirement by limiting it to donors who directed their dollars specifically to fund the ads.

He also said the bill would fix the problem of untimely Super PAC reporting. Those groups did not have to report to the FEC until Jan. 31, after the Iowa caucus and the New Hampshire, South Carolina and Florida primaries were already over, he pointed out.

He said that the on-air disclosures were not as onerous as Keating made them out to be. He also pointed out the bill allowed the FEC to waive the requirement in "hardship" cases where the disclosure would be too unwieldy. Wertheimer said the legislation would not put an undue burden on either speech or spending.

The bill might be able to pass in the Senate -- it has been pared of some of the elements that hung it up in 2010, but even if it did, it is unlikely to make it through the Republican-controlled House.