Anti-free speech legislation targeting conservative donors and backed by President Biden failed in the Senate today.
The “DISCLOSE Act” (S.443), authored by Sen. Sheldon Whitehouse (D-Beach Club), is a clear violation of basic First Amendment rights and is intentionally designed to intimidate Americans from participating in the political process. The motion to invoke cloture on the bill failed by a vote of 49 to 49.
Americans for Tax Reform opposed this nakedly political and unconstitutional legislation in a letter addressed to Senators earlier this week that urged all Members to vote “NO.”
President Biden announced his support of the legislation in a press conference earlier this week while repeatedly misnaming the legislation as the “Disclosure Act” and highlighting his support for taxpayer-funded political campaigns.
The bill would force the donors of an organization, who are not necessarily the specific donors to an ad, to appear in a political communication and force groups to disclose members of their organization who are not necessarily funding communications. This would have the intended consequence of opening up individuals to increased harassment and retaliation from political opponents.
This would also shift the regulatory standard away from those who are actually funding advertisements and targets, for the first time, to individual membership in a group. This inclusive treatment of organizational funding reveals that the intent of this legislation is not true disclosure but rather the intimidation of speech.
The Supreme Court has consistently, and rightly refused to uphold this type of comprehensive disclosure dating back to NAACP v. Alabama, recognizing that compelled disclosure can be used to intimidate speech.
Democrats have, of course, largely exempted organized labor unions that politically favor Democrat candidates from the requirements of this bill.
Even the historically left-wing American Civil Liberties Union (ACLU) has come out in opposition to previous iterations of the DISCLOSE Act. The ACLU claimed the bill would “significantly harm the speech and associational rights of Americans” and “restrict speech rights in an arbitrary manner, favoring one type of organization over another.”
The failure of this bill in the Senate is victory for proponents of the First Amendment and basic privacy rights.