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Senator Roberts: DISCLOSE Act Suppresses Free Speech

Jul 23 2014

WASHINGTON, DC – U.S. Senator Pat Roberts, Ranking Member of the Senate
Committee on Rules and Administration today made the following remarks at a
hearing titled “The DISCLOSE Act (S.2516) and the Need for Expanded Public
Disclosure of Funds Raised and Spent to Influence Federal Elections:

“For those of us who opposed the McCain Feingold bill, it is always an
interesting experience to hear concerns being expressed about the current state
of our campaign finance system. 

I opposed that legislation, along with most of my Republican colleagues,
because we feared it would make our system worse, not better.

We feared it would not get money out of the system, but would simply divert
it to other sources.

That has now come to pass.

It was not hard to predict.

Unfortunately, instead of recognizing the folly and futility of the last
regulatory scheme, the majority seeks to impose a new one. 

This time under the guise of ‘disclosure.’

It sounds harmless enough – ‘reasonable’ even. 

But it isn’t.  

The bill before the committee today has been introduced in one form or
another in each of the last three Congresses. 

Though the provisions have varied in some respects, the goal has been
consistent – to suppress speech by imposing costly and burdensome regulations
on its exercise. 

While other efforts to achieve this goal have been struck down as
unconstitutional by the courts, the majority has attempted to use disclosure as
a means to erect a new regulatory scheme to silence their opponents.

This effort must be seen in the context of their larger goal to amend the
First Amendment to permit even more regulation of political speech. 

The Judiciary Committee has reported a constitutional amendment, which our
Majority Leader has said we will be voting on in September, that would allow
the Congress to impose ‘reasonable’ restrictions on speech.

Luckily, previous considerations of the DISCLOSE Act provide some insight
into what the majority regards as ‘reasonable.’ 

For starters, when the DISCLOSE Act was considered by the House in 2010,
the restrictions and obligations it imposed were applied to groups disfavored
by the majority. 

A number of corporations were simply prohibited from speaking. 

Government contractors and TARP recipients were prohibited from making
independent expenditures.

During floor consideration, an amendment was added to also prohibit speech
by companies that explore and produce oil and gas on the Outer Continental
Shelf – the bill was on the floor soon after the Deepwater Horizon spill, you
see, so this was an easy target.

Not surprisingly, the majority thought it was perfectly reasonable to
prevent any of these companies from speaking but did not think it necessary to
extend those restrictions to the unions that might represent the workforce in
these companies. 

Republican amendments to extend the restrictions to those unions were

The majority did not find them ‘reasonable’ apparently.

In some cases, groups were excluded from the disclosure obligations solely
because the votes were not there to include them.

That is what happens once the Congress starts imposing speech restrictions
– the restrictions get applied to whoever doesn’t have enough votes in Congress
to prevent them.

This is why the First Amendment begins, ‘Congress shall make no law…’

Imposing speech regulations based on the whims of whatever party happens to
be in the majority in Congress at a given time is not ‘reasonable’ but it is
exactly what happens once we start down this path. 

I give this little recent history lesson, Mr. Chairman, because I think it
is important we not try to fool ourselves, or anyone else, about what is going
on here. 

There is no mystery about the purpose of the DISCLOSE Act – this version or
any prior one.

We know the majority is upset about the ads that are attacking them and
their agenda. 

We know they want those ads to stop. 

We know they hope new disclosure requirements will achieve that goal. 

We know they think the requirements they want to impose are

We just don’t agree.

We don’t believe new regulations will improve our system. 

We don’t think imposing new costs on the exercise of free speech rights
will improve our democracy.

If the IRS targeting scandal has taught us anything, it should be that
giving federal bureaucrats control over the political activity of American
citizens is a recipe for disaster.

It is time to admit the failure of the regulatory model and reverse the
mistake we made when we passed McCain Feingold (and the Federal Election
Campaign Act before it). 

I know my friends in the majority want to silence their opponents by any
available means but they should stop trying.

New regulations will not make our system better.

Getting rid of the regulations we have will.

If we really want disclosure, we should be advancing proposals that will
redirect resources to the candidates and parties.

They are fully accountable and fully disclose everything they spend and

Getting rid of the limits on parties and candidates would increase
transparency and enhance disclosure.

If disclosure is the goal, that is the way to achieve it.

Unfortunately, the DISCLOSE Act has another goal – one no American who
supports the Constitution should support.”