Van Hollen, Schumer Unveil Response To Citizens United (Finally)

The much-anticipated legislative response to the Supreme Court’s January Citizens United decision was (finally) introduced on Thursday, and we’re still making our way through the 84-page bill. (You can see both the PDF of the bill at its summary here.)
A few things, however, have become clear. First, the basic principles of the bill are what we anticipated – a focus on keeping foreign corporations out of U.S. elections and increased disclosure and disclaimer requirements. Second, the response to the legislation has been remarkably predictable and partisan. This appears to be a Democratic bill and Republicans want no part of it. There is no Republican co-sponsor in the Senate, making it less likely to get through that chamber. And third, some are raising the possibility that some provisions in the bill don’t meet constitutional muster and, thus, won’t hold up in court.
On the steps of the Supreme Court Thursday morning (what a theatrical setting!), Democratic Sens. Charles Schumer (D-N.Y.), Russ Feingold (Wisc.), Ron Wyden (Ore.) and Evan Bayh (Ind.) announced the Democracy Is Strengthened By Casting Light on Spending in Elections Act – or DISCLOSE Act. In the House, Democratic Reps. Chris Van Hollen (Md.) and Robert Brady (Pa.) have signed on two Republican co-sponsors – Reps. Mike Castle (Del.) and Walter Jones (N.C.).
Reactions to the bill were as expected. The Center for Competitive Politics blasted the bill as “self-serving” for Democrats. The Campaign Legal Center praised it and said “a vote against the DISCLOSE Act is a vote to keep citizens in the dark about who is really calling the shots in Washington.”
The constitutionality of the bill is something worth keeping in mind. Rick Hasen, the author of the popular Election Law Blog and a law professor at Loyola Law School in Los Angeles, said that some parts are more likely to hold up than others. One that might be challenged: A ban on any corporation that received government contracts or bailout funds from spending money on elections. “The parts that are most questionable are the ones that ban certain corporations,” he says. The reason that could be questioned is why – on constitutional grounds – their speech should be limited while other corporations’ is not.
Bill McGinley, a Republican campaign finance attorney, also pointed out that if the disclosure provisions prove to be so excessive that they discourage political speech, they could also be challenged. “Disclosure,” he said, “can be used to chill political speech.”
Hasen said he thinks the disclosure provisions will likely hold up and raised an interesting point: If the bill had just stuck to disclosure and disclaimer regulations, he believes it would have more Republican support.
No Republican support will make passage difficult, especially considering Senate Majority Leader Harry Reid (D-Nev.) has evidently told Schumer he’ll bring the legislation to the floor before July 4. For those of you keeping score at home, 11 Republican senators backed the Bipartisan Campaign Reform Act of 2002 (better known as McCain-Feingold). Democrats, though, may see a political opportunity in proceeding without any Republicans. “For Democrats,” Hasen said, “running against corporations is a pretty popular thing to do.”Jeremy P. Jacobs is the staff writer at Politics Magazine. Email him at jjacobs@politicsmagazine or follow him @jeremypjacobs