In theory, today's hearing examines the enforcement of existing campaign
finance laws. In fact, it lays the groundwork for yet another attempt to undermine
the Constitution's guarantees of free speech and assembly and limit involvement in
the political process.
The Justice Department insists that "recent changes in our campaign finance
laws have made it more difficult for us to combat the ability of individuals and
entities to "buy influence' over elections and conceal their conduct."1
It offers no evidence of newfound illegality, merely insinuation; and it condemns conduct that is, right now, completely legal. The Department then advocates for authority to prosecute that legal conduct, which happens to involve the exercise of political speech and assembly rights. There is perhaps nothing more frightening in a
democratic society than the government identifying legal political activity that it
does not like and seeking to make it illegal.
The Democratic Party is trying once again to build support for the
DISCLOSE Act -- and this hearing is part of that effort. Transparency and the
disclosure are laudable goals, but advocates of the DISCLOSE Act seek a legal
regime that will undermine the First Amendment, chilling speech and association.
The bill would gerrymander election law to favor the majority party and put the
Administration in a position to identify -- and silence -- those with which it
disagrees. That is not good government, the point of most transparency efforts. And
it will not help democracy. Prior attempts at campaign finance reform have led to
unintended consequences and, sadly, our government has a bad history of abusing
its authority to silence opposition.
Proponents of DISCLOSE claim that new restrictions on political speech and
association are necessary because Citizens United and other court decisions led to a
flood of "secret" money into elections. While no one disputes that increasing
amounts of money are being spent on elections, the amount of money given by
"secret" people or groups is a tiny fraction. And the increase is not the result of
Citizens United or any other case. Their premises are false.