DISCLOSE Act

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The DISCLOSE Act (Democracy Is Strengthened by Casting Light On Spending on Elections), or S-3295, is a pending act of Congress intended ostensibly to reinstate certain provisions of United States federal campaign-finance law that the United States Supreme Court invalidated in January of 2010 as violative of the First Amendment to the United States Constitution. In actuality, the DISCLOSE Act is primarily intended to serve its "other purposes" of subjecting disfavored grassroots political groups, and the bloggers and other Alternative Media who cover them, to a burden of regulations, scrutiny, and audits that would virtually shut them down, while leaving Mainstream Media organs, and more specifically the print and broadcast media, untouched.

Contents

Background

On January 20, 2010, the United States Supreme Court, in Citizens United v. FEC, held 5-4 that the federal government may not forbid a corporation, or a not-for-profit organization, to produce any material that directly refers to a political candidate, because that would infringe upon the First Amendment rights of the shareholders, trustees, or similar stakeholders of the organizations involved.

President Barack Obama condemned the decision, even going so far as to rebuke the Court in front of the entire United States Senate and House of Representatives in his State of the Union address. Justice Samuel Alito, unable to contain himself totally, mouthed the phrase, "That's not true" in response, as caught on camera.

Since then, the Democratic Party leaders of the Senate and House vowed to "correct" the Court's decision by passing a new campaign-finance law.

Problematic sections

The full text of the bill, now numbered S-3295, is available here. The most problematic sections are modifications to Section 324, and specifically Paragraphs (a) and (b), as follows:


  • (a) Coordinated Communications Defined- For purposes of this Act, the term ‘coordinated communication’ means--
    • (1) a covered communication which is made in cooperation, consultation, or concert with, or at the request or suggestion of, a candidate, an authorized committee of a candidate, or a political committee of a political party; or
    • (2) any communication that republishes, disseminates, or distributes, in whole or in part, any broadcast or any written, graphic, or other form of campaign material prepared by a candidate, an authorized committee of a candidate, or their agents.
  • (b) Covered Communication Defined-
    • (1) IN GENERAL- Except as provided in paragraph (4), for purposes of this subsection, the term ‘covered communication’ means, for purposes of the applicable election period described in paragraph (2), a publicly distributed or disseminated communication that refers to a clearly identified candidate for Federal office and is publicly distributed or publicly disseminated during such period.
    • (2) APPLICABLE ELECTION PERIOD- For purposes of paragraph (1), the ‘applicable election period’ with respect to a communication means--
      • (A) in the case of a communication which refers to a candidate for the office of President or Vice President, the period--
        • (i) beginning with the date that is 120 days before the date of the first primary election, preference election, or nominating convention for nomination for the office of President which is held in any State; and
        • (ii) ending with the date of the general election for such office; or
      • (B) in the case of a communication which refers to a candidate for any other Federal office, the period--
        • (i) beginning with the date that is 90 days before the earliest of the primary election, preference election, or nominating convention with respect to the nomination for the office that the candidate is seeking; and
        • (ii) ending with the date of the general election for such office.
    • (3) SPECIAL RULE FOR PUBLIC DISTRIBUTION OF COMMUNICATIONS INVOLVING CONGRESSIONAL CANDIDATES- For purposes of paragraph (1), in the case of a communication involving a candidate for an office other than President or Vice President, the communication shall be considered to be publicly distributed or publicly disseminated only if the dissemination or distribution occurs in the jurisdiction of the office that the candidate is seeking.
    • (4) EXCEPTION- The term ‘covered communication’ does not include--
      • (A) a communication appearing in a news story, commentary, or editorial distributed through the facilities of any broadcasting station, newspaper, magazine, or other periodical publication, unless such facilities are owned or controlled by any political party, political committee, or candidate; or
      • (B) a communication which constitutes a candidate debate or forum conducted pursuant to the regulations adopted by the Commission to carry out section 304(f)(3)(B)(iii), or which solely promotes such a debate or forum and is made by or on behalf of the person sponsoring the debate or forum.

Note carefully paragraph (b)(4)(A-B) above. "Covered communications" are defined in terms of the medium that carries them. Radio and television stations, and printed newspapers and magazines are excluded, but on-line forums and "blog" hosts are not. Therefore, no commentator would be allowed to mention a candidate during election season. This would destroy many blogs that are set up specifically to cover election-related news during primary and general election season, while specifically stating that the Mainstream Media, or more specifically its print and broadcast organs, will be the only ones allowed to comment freely. The great fear is that this is an attempt to restore the Fairness Doctrine, and to begin with on-line media, which did not exist when the Federal Communications Commission first promulgated that Doctrine in 1949.

Public debate

The National Rifle Association at first protested the legislation vociferously, only to fall silent after obtaining a special exemption for itself. It thus abandoned smaller groups that would be overwhelmed by the regulation.

Current status

On July 27, 2010, the DISCLOSE Act came within three votes of obtaining cloture in the United States Senate. However, Senator Harry Reid (D-NV) craftily changed his vote at the last minute from "Yea" to "Nay" so that he would have the opportunity, under the Senate rules, to move to reconsider the vote at a later date.

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