Disclose Act

Floor Speech

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 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.

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