Disclose Act

Floor Speech

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Mr. FEINGOLD. Mr. President, I appreciate the Senator from New York bringing us together to discuss the DISCLOSE Act, S. 3295, which he introduced last week and which I am proud to cosponsor.

As the name suggests, the central goal of this bill is disclosure. It aims to make sure that when faced with a barrage of election-related advertising funded by corporations, which the Supreme Court's decision in the Citizens United case has made possible, the American people have the information they need to understand who is really behind those ads. That information is essential to being able to thoughtfully exercise the most important right in a democracy--the right to vote.

It is no secret that the Senator Schumer and I, and all of the original cosponsors of the bill, were deeply disappointed by the Citizens United decision. We reject the Court's theory that the first amendment rights of corporations, which can't vote or hold elected office, are equivalent to those of citizens. And we believe that the decision will harm our democracy. I, for one, very much hope that the Supreme Court will one day realize the mistake it made and overturn it.

But the Supreme Court made the decision and we in the Senate, along with the country, have to live with it. The intent of the DISCLOSE Act is not to try to overturn that decision or challenge it. It is to address the consequences of the decision within the confines of the Court's holdings. Congress has a responsibility to survey the wreckage left or threatened by the Supreme Court's ruling and do whatever it can constitutionally to repair that damage or try to prevent it.

In Citizens United, the Court ruled that corporations could not constitutionally be prohibited from engaging in campaign related speech. But, with only one dissenting Justice, the Court also specifically upheld applying disclosure requirements to corporations. The Court stated:

[P]rompt disclosure of expenditures can provide shareholders and citizens with the information needed to hold corporations and elected officials accountable for their positions and supporters. Shareholders can determine whether their corporation's political speech advances the corporation's interest in making profits, and citizens can see whether elected officials are `` in the pocket' of so-called moneyed interests.

The Court also explained that disclosure is very much consistent with free speech:

The First Amendment protects political speech; and disclosure permits citizens and shareholders to react to the speech of corporate entities in a proper way. This transparency enables the electorate to make informed decisions and give proper weight to different speakers and messages.

The Court also made clear that corporate advertisers can be required to include disclaimers to identify themselves in their ads. It specifically reaffirmed the part of the McConnell v. FEC decision that held that such requirements are constitutional.

The DISCLOSE Act simply builds on disclosure and disclaimer requirements that are already in the law and that the Court has said do not violate the first amendment. Notwithstanding the Court's strong endorsement of disclosure and the fact that for years opponents of campaign finance reform have claimed that timely and exacting disclosure requirements are preferable to other campaign finance restrictions, we are already hearing claims that this bill violates the first amendment. Let me take a minute to address some of the criticisms of this bill that have been made.

First, there is the claim that the disclosure requirements are intended to chill political expression. It is, of course, entirely possible that some organizations will decide not to run ads if they have to identify who is really footing the bill for them. But if that happens, it is not because the disclosure requirements interfered with their right to speak out, it is because they were not willing to provide the information that the Supreme Court has said ``enables the electorate to make informed decisions and give proper weight to different speakers and messages.'' Candidates disclose their donors. There is no reason for those who want to elect or defeat those candidates not to disclose theirs. We do not intend to chill speech with this bill. We intend to make it easier for the public to evaluate that speech.

Second, some claim that the requirements of the DISCLOSE Act are too burdensome, and the expense will prevent some groups from speaking. This seems highly unlikely in light of the already high cost of campaign advertising. Surely any group that is able to spend the kind of money it takes to run television ads attacking or promoting a candidate will have the resources to make sure that the American people have the information they need to evaluate those ads.

Third, the bill is criticized because it requires additional reporting of corporations that spend money directly from their treasuries rather than setting up a campaign related activity account. But this is the wrong way to look at the bill. The Citizens United decision allows spending directly from corporate treasuries. That's the default way of doing it, and the bill sets up a disclosure system that will ensure that adequate information about the real sources of the spending is made available to the public. It then sets up an alternative format for disclosure that a corporation can choose to take advantage of if it agrees to spend money on campaign spending only from a separate account. That promise to spend only from the campaign related activities account makes the more comprehensive disclosure of contributions to the treasury unnecessary. And it should always be remembered that any donor to a corporation or organization who wants to remain anonymous need only specify that the contribution cannot be use for campaign spending. These features of the bill show that it is narrowly tailored, not that it is discriminatory.

It is also very important to note that the bill applies equally to groups on both sides of the political fence. Corporations, unions, groups on the left and the right, will all have to disclose their spending and their donors if they want to spend treasury money on political ads. This bill doesn't discriminate against anyone. It treats all political actors equally. Any argument that the bill favors unions or other organizations that mostly support Democrats is simply wrong. I have a long history of bipartisan work on campaign finance issues. I am not interested in legislation that has a partisan effect. This bill is fair and evenhanded. It deserves the support of Senators on both sides of the aisle.

Most of the complaints about the bill come from interests that want to take advantage of one part of the Citizens United decision--the part that allows corporate spending on elections for the first time in over 100 years--and at the same time pretend that the other part of the decision--the part upholding disclosure requirements--doesn't exist. But the law doesn't work that way. As the old saying goes, ``you can't have your cake and eat it too.''

Once again, I very much appreciate the leadership of the Senator from New York and look forward to working with him and all my colleagues to pass this bill. I now yield for the Senator from Oregon, Mr. Wyden.

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