Monday, May 3, 2010

Thoughts on the DISCLOSE Act and the numbing down of the Supreme Courts Citizens United decision…


Last week, U.S. Senators Charles E. Schumer (D-NY), Russ Feingold (D-WI), Ron Wyden (D-OR), Evan Bayh (D-IN) and Al Franken (D-MN) introduced legislation which is aimed at numbing down the potential effects of the Supreme Court’s Citizens United decision with regards to corporate personhood and campaign ads. In an earlier KTI article, we discussed how the Supreme Court’s controversial decision is believed by many to be the end for the small guy in the electoral process. Thus giving the largest corporations, foreign interests included, overwhelming influence over election spending in the United States. Also, in allowing corporations to act as individual citizens with regards to their participation in the political process, the Citizens United decision left the door wide open for opponents in Congress to take action in balancing out its effects. The DISCLOSE Act (Democracy Is Strengthened by Casting Light on Spending in Elections Act) is the first proposed, post-Citizens United legislation, which address’s this matter directly. The provisions, endorsed by President Obama in an address last week, are expected to pass through both Houses, with or without bipartisan support.

The DISCLOSE Act, as written, addresses four key areas:

1.) THE REGULATION OF CERTAIN TYPES OF POLITICAL SPENDING
a.) Banning pay to play practices by preventing government contractors and corporate beneficiaries of TARP from spending money on elections.
b.) Preventing foreign influence on elections by closing a loophole for spending by domestic corporations controlled by foreign nationals. Companies with the following four situations will be prevented from contributing to candidates, Pac’s, and parties:
b1. A foreign national owns 20% or more of voting shares in the corporation
b2. A majority of the board of directors are foreign national’s
b3. One or more foreign nationals have the power to direct, dictate, or control the decision-making of the U.S. subsidiary
b4. One or more foreign nationals have the power to direct, dictate, or control the activities with respect to federal, state or local elections
c.) Preventing organizations from coordinating their activities with candidates and parties. More specifically, for House and Senate races, the legislation would ban coordination between a corporation or union and the candidate on ads referencing a Congressional candidate in the time period starting 90 days before the primary and continuing through the general election. For presidential campaigns, the legislation would ban coordination between a corporation or union and the candidate on ads referencing a Presidential or Vice Presidential candidate in the time period starting 120 days before the first presidential primary and continuing through the general election.
d.) Regulates Party Communications, stating that any payment by a political party committee for the direct costs of an ad or other communication made on behalf of a candidate affiliated with the party will be treated as a contribution to the candidate only if the communication is directed or controlled by the candidate and party-paid communications that are not directed or controlled by the candidate are not subject to limits on the party’s contributions or expenditures.

2.) PROMOTING EFFECTIVE DISCLOSURE OF CAMPAIGN RELATED ACTIVITY
The legislation ensures that the public will have full and timely disclosure of campaign-related expenditures (both electioneering communications and public independent expenditures) made by covered organizations (corporations, unions, section 501(c)(4), (5), and (6) organizations and section 527 organizations). The legislation imposes disclosure requirements that will mitigate the ability of spenders to mask their campaign-related activities through the use of intermediaries. It also requires disclosure of both disbursements made by the covered organization and also the source of funds used for those disbursements.

3.) DISCLOSURE BY COVERED ORGANIZATIONS OF INFORMATION ON CAMPAIGN-RELATED ACTIVITY
Requires periodic disclosures to shareholders, members, and donors of information on disbursements for campaign-related activity. The covered organization shall post the information described in subparagraph not later than 24 hours after the organization files the information with the Commission under the applicable provision of this Act, and shall ensure that the information remains on the website until the expiration of the 1-year period which begins on the date of the election with respect to which the public independent expenditures or electioneering communications are made.

4.) TELEVISION MEDIA RATES
Requires media outlets to charge the lowest possible rate for air time and to afford the same rate to all parties seeking advertising spots. This ensures an evening of the electioneering playing field by forcing media outlets to diversify and open their airwaves to less financed candidates. These rates, regulated by the FCC, would apply 45 days preceding the date of a primary or primary runoff election and during the 60 days preceding the date of a general or special election in which such person is a candidate.

These anticipated, and widely supported adjustments, are a best case reaction to the unpopular Citizen’s United decision that will ultimately serve to improve on the legislative goals of McCain-Feingold. The increased focuses on monetary transparency, and the impending removal of shadowy contributors from the process through CEO and donor testimonials, are widely viewed as positive moves that should be politically popular with most Americans. With regards to protecting the voice of the individual voter, the influence of big money on elections has served to alienate the lower and middle class from the electoral process. Therefore, if implemented correctly, the DISCLOSE Act may be the appropriate legislation to counter to the Supreme Court’s ruling. The Senators who drafted this legislation have the important benefit of an electorate that feels trumped by the power of special interests and corporate lobbyists. Coupled with the vociferous support of President Obama, and many progressives in Congress, the lost voices of the individual voter may soon get a much needed boost in volume and importance.

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