McConnell Floor Speech on "Disclose" Act

Senate Republican Leader Mitch McConnell gave a blistering speech on the so-called "Disclose" Act, which is in reality a bill to protect Democratic incumbents. McConnell condemns to bill's lack of transparency -- it was drafted behind closed doors with no hearings -- and the fact that it in supposedly improving campaign finance it picks winners and losers with respect to the first amendment.

Here's McConnell's speech:

Eight years ago, Congress passed and the President signed a bill known as the Bipartisan Campaign Reform Act, or BCRA. This bill was the culmination of a long and protracted battle, in which I played a major part, as many of my friends on both sides of the aisle will recall. It garnered bi-partisan support and bi-partisan opposition. Many hearings were held, studies were conducted. And a lengthy record on both sides of the issue was developed.

“I strongly opposed that bill. But I commend its authors for one thing: in drafting and passing BCRA, they made every effort to ensure that everybody would have to play by the same rules — rules, moreover, that would not take effect in the middle of an election year. They wanted to make sure there was no appearance of giving one party a partisan advantage. And in that, they succeeded.

“Now fast forward to today. Late last week, Democrat leaders decided to take us off the Small Business bill to move to the DISCLOSE Act, a bill that is the mirror opposite of BCRA in the partisan way it was drafted and in the partisan way it’s being pushed ahead of an election.

“Let’s be perfectly clear: this bill is not what its supporters say it is. It is not an effort to promote transparency. It is not a response to the Supreme Court’s ruling in Citizens United — which has now been the law of the land for seven months and which, contrary to the breathless warnings of some, has not caused the world to stop turning on its axis.

“This bill is a partisan effort, pure and simple, drafted behind closed doors by current and former Democrat campaign committee leaders, and it’s aimed at one thing and one thing only: this bill is about protecting incumbent Democrats from criticism ahead of November.

“The supporters of this bill say it’s about transparency. To that, I say it’s transparent alright. It’s a transparent effort to rig the fall elections. And they’re so intent on their goal that they’re willing to launch an all-out assault on the First Amendment in order to get there.

“Democrats achieved something truly remarkable in drafting this bill. They united the ACLU and the Chamber of Commerce — both in opposition. Why? Because it’s as obvious to these groups as it is to me that the DISCLOSE Act is a clear violation of the right to free speech.

“And as usual with Democrats in this Congress, the process hasn’t been any better than the substance. Over in the House, the Democrats’ campaign committee chairman sprung a rewrite of substantial portions that Republicans and even Democrats hadn’t seen shortly before this bill was voted on. Not to be outdone, Democrats here in the Senate introduced a version last week that had been substantially rewritten since it was first introduced in April. In other words, the original Senate version was replaced under a veil of secrecy late last week, and that’s the one Democrat leaders want us to vote on today.

“A massive rewrite of the laws that govern elections and Democrats want to give six full days between introduction and a vote. A massive re-write of the nation’s campaign finance laws without hearings, without testimony, without studies, without a markup. Another bill produced without a single hearing and placed directly on the calendar to bypass even the Rules Committee, which is supposed to have jurisdiction over this issue. A bill written behind closed doors with the help of lobbyists and special interests. All of this — in the name of transparency! Forget the DISCLOSE Act, Mr. President. What we really need is a “Transparency in Legislating about Elections Act.”

“This approach to this bill couldn’t be more different than BCRA. However much I disagreed with that bill, it treated all groups, corporations, unions, parties and individuals the same. From the ban on party non-federal dollars to advertisement limitations within proximity of an election, BCRA’s restrictions and prohibitions were applied evenly. The DISCLOSE Act is the opposite: 117 pages of stealth negotiations in which Democrats pick winners and losers, either through outright prohibitions or restrictions so complex that they end up achieving the same result.

“The unions don’t need a carve-out because they got exemptions. The new law applies to government contractors, but not their unions or unions with government contracts. It doesn’t apply to government unions. It applies to domestic subsidiaries, but not to their unions or international unions. Through threshold and transfer exemptions, unions are the ultimate victors under this bill.

I would note that numerous attempts were made to provide parity in the House Administration Committee mark-up — all were defeated on a partisan basis with no credible explanation. And this is what they’re calling transparency.

“In their efforts to pass this partisan bill ahead of the election, Democrats have been forced to do the same kind of horse-trading we saw in the health care debate. Some of the deals they struck were aimed at attracting special interest support, while others were aimed at quelling special interest opposition. In the end, they came up with a bizarre carve-out construct that grants full First Amendment freedoms to the chosen ones. And the results aren’t any prettier than the health care bill.

“Follow this logic: The exemption applies to 501c4s, with 500,000 members in all 50 states plus Puerto Rico and DC, in existence for 10 years who receive less than 15% of their money from corporations or labor unions. In case you don’t know who this provision is aimed at, it’s a carve-out for the NRA — as well as the AARP and the Humane Society, among unknown others, but not to groups like AIPAC or groups formed to advocate for victims of the oil spill or Hurricane Katrina. So if you have 400,000 members, sit down and shut up. If you were founded in 2002, nice try, sit down. If you don’t have the ability to recruit members in every state, zip it. These are the contortions the authors of this bill had to go through to get it this far.

“Worse still, the DISCLOSE Act mandates that its provisions shall take effect without regard to whether or not the Federal Election Commission has promulgated regulations to carry out such amendments. This, of course, will have the practical effect of paralyzing those who want to participate in the political process. If they don’t know what the rules are, they’ll take themselves out of the game, which is clearly what the authors of this bill want.

“Let me ask a question. All these new reporting obligations, filing requirements, certification mandates and transfer burdens are to occur, how? Are there magic forms out there we don’t know about? Do folks write emails to the FEC, FCC or SEC? Maybe we bring back telegrams or use a Harry Potter Owl or the Pony Express? Under threat of criminal sanctions, this provision is a clear message from the Justice Department to anyone covered by the new restrictions in this bill: go ahead and speak, make my day.

“Lastly, Mr. President, recognizing the important constitutional questions at issue with BCRA, an expedited judicial review provision was included in that bill. Not so with this one. In order to make sure this bill isn’t held up by something as inconvenient as a challenge on first amendment grounds, its authors have made sure no court action interferes with their new restrictions this election cycle and maybe next. They add multiple layers of review.

“No provision addressing an appeal to the Supreme Court. No time limits for filing, and no Congressional direction to the courts to expedite. Again the goal of the proponents of this speech rights reduction act is clear: slow the process and secure new rules that help incumbent Democrats for the upcoming elections, and for the foreseeable future.

“Their one goal here is to get people who would criticize them to stop talking about what Democrats have been doing here in Washington over the past year and a half.

“The authors of the bill labored behind closed doors to decide who would retain the right to speak; In direct defiance of what the Supreme Court made clear this past January, when Justice Kennedy, writing for the majority, said, `[W]e find no basis for the proposition that, in the context of political speech, the government may impose restrictions on certain disfavored speakers.’

“That is precisely what the Disclose Act does. It imposes restrictions on speech. And I would note that the one category of speakers upon whom the so-called reformers have bestowed the greatest speech rights in this bill are corporations that own media outlets. So a company that owns a TV network, newspaper or blog can say what they want, when they want, as often as they want.

“BCRA was debated over the course of many years. Its authors also recognized the importance of not changing the rules on the eve of an election, which is why the legislation went into effect the day after the 2002 midterm elections. The DISCLOSE Act is the opposite. Seeking to achieve exactly what BCRA avoided, this legislation has an effective date of 30 days after enactment. If it weren’t already obvious that this bill is a partisan exercise, the effective date should be proof positive.

“And those, Mr. President, are the facts.

“Now, I must admit it’s been a few years since I was in law school. So after I learned about all these special deals, I went back to the First Amendment to look for an asterisk or something indicating that only large entrenched and wealthy special interests get the `freedom of speech’.

“I didn’t see it. So I pulled out this Analysis and Interpretation of the Constitution thinking maybe it could be found there. I looked and looked, again to no avail.

“Then it occurred to me. Perhaps on that winter day in 1791 when the First Amendment became effective, these rights were meant to apply to all. Perhaps it is true the First Amendment was adopted to protect the people from Congress, to protect them from laws like this.

“To protect them from a government that picks winners and losers. To protect them from an overreaching government that’s supposed to derive its powers from the consent of the governed.

“The Disclose Act is not about reform. It is nothing more than Democrats sitting behind closed doors with special interest lobbyists choosing which favored groups they want to speak in the 2010 elections — all in an attempt to protect themselves from criticism of their government takeovers, record deficits and massive, unpaid-for expansions of the federal government into the lives of the American people.

“In other words, a bill to shield themselves from average Americans exercising their First Amendment rights of freedom of speech.

“Americans want us to focus on jobs, but by taking us off the small business bill and moving to this one, Democrats are proving the jobs they care about most are their own.

“Think about it. Here we are in the middle of the worst recession in memory, and Democrat leaders decided to pull us off a bill that’s meant to create jobs in an effort to pass this election-year ploy to hold onto their own.

“What could be more cynical than that?

“A yes vote on this bill will send a clear message to the American people that their jobs aren’t as important as the jobs of embattled Democrat politicians.

“In closing, let me just note that hundreds of ideologically diverse organizations oppose this bill and have provided us with valuable information on its various absurdities. But I think the ultimate test of this bill’s legitimacy is pretty simple. If the Founding Fathers were here, they’d remind us. They’d hold up the Constitution and remind us of the oath we took to support and defend it.

“As members cast this vote today, they’ll come to the well and look at the desk to see what the well description says — the sheet of paper that sums up what this vote is about. On the Democrat side I’m sure it will include words like transparency and disclosure and talk about the threats to Democracy if this bill isn’t passed.

“On our side Mr. President, it will be simpler. This copy of the Constitution will serve as our well description, and, more importantly, it will remind us of why we’re all here. We’re here to protect the Constitution, not our own hides.

“I yield the floor.”