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Public Statements

Preserving the First Amendment


Location: Washington, DC

By Senator Jon Kyl

The First Amendment to the U.S. Constitution prohibits making any law that infringes on one's freedom of speech. It is one of Congress's greatest responsibilities to protect that right, not shield Members of Congress from it.

Those who value the freedom of speech recently won a narrow victory when Senate Republicans beat back the DISCLOSE Act by a slim margin. This legislation, which would regulate political communications and impose burdensome disclosure requirements, is a direct assault on the First Amendment right to free speech.

The DISCLOSE Act was an attempt to circumvent the Supreme Court's recent decision in Citizens United v. the Federal Election Commission. In that ruling, the Supreme Court held that unions and corporations can exercise their freedom of speech by using general treasury funds for independent election communications. In other words, they may use their own money to make their case to the American people about who they believe the best candidate is.

Instead of rejoicing that the freedom of speech was strengthened by the Supreme Court's ruling in Citizens United, Democrats hastily cobbled together the DISCLOSE Act behind closed doors to insulate members of their own party from the wrath of the American people in November's election. They didn't hold hearings, listen to testimony, or mark up a bill. Senators did not even have the chance to review the bill in committee or offer amendments.

While Democrats touted their bill as victory for transparency that will insulate voters from electioneering by special interests, the process and the text of the legislation speak for themselves. A bill written behind closed doors contradicts the goal of transparency, and the bill contains numerous exemptions that would intentionally and specifically benefit some of the Democrats' favorite groups.

The bill's 117 pages are an exercise in picking winners and losers. Labor unions, for example, would be left unscathed, but for-profit organizations would be subject to burdensome restrictions. In fact, the disclosure requirements would apply to government contractors, but not their unions or unions with government contracts. Since when does freedom of speech only apply to special interests that have a history of support for the party in control of Congress and the White House?

While the intent of this bill is decidedly partisan, opposition to it has transcended party lines. The usually liberal-friendly American Civil Liberties Union has even come out against it, as have hundreds of business groups and trade associations.

The DISCLOSE Act is an attempt to change the law to shield incumbent candidates from criticism of unpopular decisions and positions. Why else would the bill's authors insist the bill take effect just 30 days after passage -- perhaps just in time for the November elections? No one in political life enjoys criticism, but the First Amendment makes clear we can't make ourselves immune from it. Defeating the DISCLOSE Act is a good first step toward reform of Washington.

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