[Congressional Record (Bound Edition), Volume 156 (2010), Part 10]
[Senate]
[Pages 14013-14014]
[From the U.S. Government Publishing Office, www.gpo.gov]




                              DISCLOSE ACT

  Mr. CORNYN. Madam President, I am going to talk about the so-called 
DISCLOSE Act that we will vote on this afternoon at 2:45. Of course, 
this is a cloture vote which will require 60 votes to proceed to the 
bill.
  At the time the cloture motion was filed, the bill was so new that it 
was not even available on the Senate's Web site. Unfortunately, this 
represents a trend where we have seen legislation come to the floor 
that is so new and unavailable to the American people to read that they 
are left to wonder what actually is in the bill.
  This particular version of the bill was introduced less than a week 
ago. Sadly, I have concluded that this bill represents another attempt 
by my colleagues to push through legislation without adequate time for 
deliberation and review. In this case, it has pretty dramatic and dire 
consequences.
  It will reduce freedom of speech in a way that is inconsistent with 
the first amendment of the U.S. Constitution, it creates more Federal 
regulation, and it does not give the American people the opportunity to 
review the legislation and to weigh in because they cannot understand 
what are the ramifications. So in the short time we have between now 
and 2:45, I would like to weigh in a little bit to hopefully inform 
anyone who is listening what this particular piece of legislation will 
do.
  I fear that what this legislation does, in sum, is to protect 
incumbents--protect incumbents--which is not the type of legislation 
that I think most of our constituents would want to see us pass. I 
believe they would prefer legislation, if any legislation would be 
necessary, that would not restrict freedom of speech but would 
encourage freedom of speech and more political participation in our 
elections and the process. But this bill doesn't do that. This bill 
protects incumbents by suppressing the speech of some while letting 
other speakers speak without any limitation whatsoever. In other words, 
what this bill does is it picks winners and losers in the political 
speech contest--something the first amendment does not allow us to do.
  I would also say that in the rushing to judgment on the part of the 
proponents of this bill, we are left to speculate as to what impact the 
Citizens United decision by the U.S. Supreme Court will really have and 
whether for-profit corporations will actually use this decision to 
spend money in elections. I happen to believe there is very little 
chance most corporations' shareholders will allow their money to be 
spent for the purpose of advertising on issues in upcoming political 
elections because they are going to either want the money returned in a 
dividend to the shareholders or they are going to want money invested 
to create a growing business and to create a better return on their 
investment. They are not going to want their money used for the 
purposes for which the proponents of this legislation fear, in my view.
  The fact is, this bill will fundamentally remake the rules and 
regulations governing the exercise of free speech in American 
elections. We should be extra cautious in legislating in this area for 
three reasons:
  First, regulation of speech always raises significant first amendment 
considerations. The first amendment is the cornerstone of our 
democracy. Political speech about candidates for elected office is at 
the core of the values protected by the first amendment.
  Second, regulation of campaign speech often comes with unintended 
consequences. Back in 2002--I wasn't here at the time--the Bipartisan 
Campaign Reform Act was passed. It was also known as the BCRA or 
McCain-Feingold. I believe it was passed with the very best of 
intentions, but it has not prevented the exponential increase in the 
amount of money spent in elections in America since that time. In the 
2008 election cycle, President Obama and Senator McCain raised and 
spent nearly twice as much money as President Bush and Senator Kerry 
did in 2004--almost twice as much in 4 years. In fact, together, the 
two Presidential candidates in 2008 spent more money for the general 
election than did all the Presidential candidates between 1976 and 2000 
combined. The so-called Bipartisan Campaign Reform Act of 2002 has also 
led to another unintended consequence: it has led to a proliferation of 
interest groups using section 527 of the Internal Revenue Code or some 
other provision of the law to pour massive amounts of money into 
campaigns with even less transparency than has existed before.
  The third reason we should be especially careful when regulating 
political speech is that Senators have an inherent conflict of 
interest. Our jobs depend on the rules surrounding campaigns and 
elections, so there is a natural temptation by the Senate majority to 
change the rules in a way that helps its own chances of reelection. The 
question is, Does this bill resist that temptation to rewrite the rules 
to benefit the majority party, to protect incumbents, or does this bill 
succumb to that temptation? I submit that this bill succumbs to that 
temptation in the haste to push through rules that will protect, in the 
view of the proponents of this legislation, incumbents in the election 
that will be held almost 100 days from now.
  This bill would silence critics of the majority party--it is that 
simple--and it would protect the closest allies and special interests 
aligned with the majority party.
  This bill treats similarly situated parties differently. That is what 
I mean by picking winners and losers. It would silence businesses with 
some foreign shareholders, but it would protect unions with significant 
foreign membership. It would silence businesses with government 
contracts, but it would protect unions of government employees and 
unions that work on those same government contracts. It would silence 
companies that have received TARP funds but protect the unions that 
represent those same companies' employees.
  Labor unions aren't the only allies of the majority party to receive 
special treatment in this bill. The bill protects limited liability 
partnerships and other business models favored by the legal profession. 
It creates carve-outs reminiscent of what we saw happen in the health 
care bill with the ``Louisiana purchase'' and the ``Cornhusker 
kickback.'' It creates a carve-out for the largest, wealthiest, and 
most powerful Washington-based special interest groups, such as the 
National Rifle Association and the American Association of Retired 
Persons, AARP.
  The bill also tends to favor large businesses over small businesses 
and

[[Page 14014]]

Washington-based interest groups over grassroots interests. How does 
this bill do that? Well, simply because it creates such a Byzantine 
labyrinth of regulations and disclosure requirements that only large 
organizations with the money to hire the very best lawyers will be able 
to figure out how they can exercise their first amendment rights. There 
are enough loopholes that a corporation or a union large and 
sophisticated enough to set up the right legal structure can continue 
to speak and spend money to exercise their first amendment rights, but 
a small business or a grassroots group of citizens is unlikely to have 
either those sorts of political connections or the money to be able to 
hire the specialized expertise to allow them to navigate this 
labyrinth. And if you can't afford to comply with the bill's onerous 
regulations, then you are not allowed to speak at all.
  Why are some of my colleagues supporting the bill? I can think of two 
reasons:
  First, some of my colleagues fear the righteous judgment of the 
American people in this coming election on November 2. They are trying 
to change the rules in the middle of the game to suppress the speech of 
those who might disagree with these incumbent Senators who are standing 
for reelection so that the American people won't have all sides of the 
story when they go to vote on November 2. Bradley Smith, a former 
Chairman of the Federal Election Commission, put it this way. He said 
the so-called DISCLOSE Act should stand for the ``Democrat Incumbents 
Seeking to Contain Losses by Outlawing Speech in Elections''--the 
DISCLOSE Act.
  Second, it is clear that some folks in Washington just like 
suppressing speech they do not agree with. Other attempts have included 
asking citizens to forward their neighbors' criticisms about the 
administration to the White House e-mail account--remember when that 
happened--and sending cease-and-desist letters--this is something the 
administration did during the health care debate--to companies that 
criticized their health care bill. And of course there have been well-
documented efforts to bring back the so-called Fairness Act, which is 
anything but.
  I don't know, though, whether my colleagues who are pushing this bill 
are doing so in order to protect their political power or, frankly, in 
an arrogant display of disdain for the views and opinions of the 
American people--the kinds of views we have seen displayed at townhall 
meetings, at tea party rallies, and other spontaneous movements around 
this country. It is absolutely the fact that the first amendment was 
written to protect freedom of speech, even the speech we don't like and 
don't agree with. I believe the first amendment of the U.S. 
Constitution and freedom of speech have made us stronger and freer and 
has helped inform policymakers so that we can make better decisions 
because we have considered all points of view.
  But whatever the reason the proponents of this bill have for offering 
this bill, I would point out--and I don't think it is a coincidence--
that the chief House proponent is the current chairman of the 
Democratic Congressional Campaign Committee and the chief proponent in 
the Senate is the former chairman of the Democratic Senatorial Campaign 
Committee. I don't think that is coincidental.
  Whatever the reason, I oppose this bill, and I urge my colleagues to 
oppose this afternoon's cloture motion.
  I yield the floor.
  The ACTING PRESIDENT pro tempore. The Senator from Tennessee.
  Mr. ALEXANDER. Madam President, will you let me know when 9 minutes 
has expired?
  The ACTING PRESIDENT pro tempore. I will.

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