AOI opposes Federal Disclose Act. Corporate free speech concerns

By J.L. Wilson
Associated Oregon Industries

Federal Legislation would facilitate retaliation against Oregon businesses for political speech.

AOI joined the U.S. Chamber of Commerce and a national coalition of business groups in opposition to the federal DISCLOSE Act of 2012 last week.

AOI signed a formal letter of opposition to the legislation addressed to the U.S. Senate, which is expected to take up the legislation.

“DISCLOSE 2012,” like its predecessors in 2010, is a partisan effort to chill the political speech of Oregon businesses and business interests while giving labor unions special protections.

DISCLOSE 2012 has been introduced in the U.S. Senate by Senator Sheldon Whitehouse (D-RI) (S. 2219) and in the House by Representative Chris Van Hollen (D-MD) (H.R. 4010).

Some of the lowlights of the legislation include:

Favoring labor unions over corporations and business associations.

The bill purports to be even handed in its treatment of labor unions, corporations, and business associations, but the reality is that it is designed to burden labor unions significantly less than other groups.

Unlike labor unions, business associations do not have a ground-up funneling structure built on the mandatory dues of millions of members. Many of a business association’s corporate members might give it more than $10,000 over two years, which would trigger disclosure. Similarly, most business associations do not have thousands of local affiliates from which they can draw up to $50,000 in “affiliate transfers” that are free from disclosure requirements under the legislation.
Although supporters claim the legislation applies to all speakers, the $10,000 threshold and the affiliate transfer provisions reveal this purportedly neutral disclosure bill to be a partisan, election-focused undertaking.

Targeting certain speech based on the identity of the speaker.

The bill violates the First Amendment because it seeks to restrict speech based on the identity of the speaker. The bill’s manifest purpose is to impose exceptional burdens on the speech of corporations and business interests based on their identity as corporations and their presumed hostility to the political objectives of the bill’s supporters. As the Supreme Court held in Citizens United, “the First Amendment generally prohibits the suppression of political speech based on the speaker’s identity.”

Facilitating retaliation against businesses, in violation of the First Amendment.

By requiring groups to disclose the names and addresses of their donors, the bill is intended to facilitate retaliation against unpopular or unfavorable political views. This also infringes constitutional rights, because the First Amendment does not permit the government to require membership disclosure if there is a “reasonable probability” that the donors will be subject to “threats, harassment, or reprisals.”

The probability of unconstitutional reprisals against political speakers is palpable; partisan interest groups already are announcing plans for them. For example, the interest group Media Matters has made clear that it would use campaign spending disclosure to “provoke backlashes among companies’ shareholders, employees, and customers, and the public-at-large.”

Advertising disclaimers intended to deter political speech.

The bill’s new, so-called “Stand by Your Ad” requirements for radio and television communications would impose an unacceptable burden on speakers. The bill provides that any covered communication must contain a disclosure statement from the individual or organization paying for the advertisement. In the case of an organization, the CEO or most senior official would have to convey the message. The bill would also require covered television advertisements to contain a list of the “Top Five” donors who contributed to the organization in the past two years. For radio advertisements, the bill would require the disclosure of the “Top Two” donors.

The only real added purpose served by on-air disclaimers is to limit the amount of time the speaker can use for political speech. Indeed, the bill would require that the on-air disclosures consume fully 20% of a typical 30 second television advertisement.

AOI will continue to defend the right of Oregon employers to participate in our state’s and our nation’s political discourse. You can see the AOI-signed letter of opposition to DISCLOSE 2012 here.

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