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Exposing the Scare Campaign Against the DISCLOSE Act

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UNITED STATES ? JANUARY 20: Move to Amend holds a rally at the Supreme Court to 'Occupy the Courts' and mark the second anniversary of the Citizens United v. FEC Supreme Court case on Friday, Jan. 20. 2012. (Photo By Bill Clark/CQ Roll Call) | Getty Images
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With the Senate Rules Committee taking up the 2014 edition of the DISCLOSE Act this morning, look for truth to take a beating from the bill's opponents.

And no wonder. The case for DISCLOSE, which would bring into the open hundreds of millions of dollars in now-hidden political giving, is so compelling, so self-evident, that a credible, logical argument against it is nowhere to be found.

So DISCLOSE's foes will resort to scare tactics. They'll argue that DISCLOSE is unconstitutional, part of a government-backed campaign to stifle free speech and silence government critics.

It's nonsense. Here's why.

The First Amendment bars Congress from enacting laws "abridging the freedom of speech." That does not describe DISCLOSE.

In fact, the Supreme Court has long-held that disclosure laws are consistent with the First Amendment. Eight justices signed on to the part of Citizens United in which Justice Kennedy wrote that the "First Amendment protects political speech ... [and] transparency enables the electorate to make informed decisions and give proper weight to different speakers and messages."

The DISCLOSE Act would not regulate the content of anyone's speech or limit the amount of money that can be spent to support or oppose candidates. Common Cause favors strong campaign spending regulations, but the debate over them is entirely unrelated to DISCLOSE.

DISCLOSE would strengthen transparency laws that have been part of our campaign finance system since the Watergate scandal. It's needed because secret spending from undisclosed sources has increased substantially since Citizens United, but our disclosure laws have not kept pace.

The legislation focuses on informing the public about political spending that is large enough to buy access or influence an elected official's votes or other actions. It reflects a compelling public interest in the release of information about who is spending substantial amounts of money - and how much is being spent - to influence elections and the shaping of public policy. That kind of disclosure is particularly vital in today's political environment, where a candidate's prospects for success almost always depend on his or her ability to attract the help of super PACs and their big money donors.

No one is suggesting disclosure requirements for donors who spontaneously chip in $10, $20 and even $50 in response to a candidate mailing or speech to a political club meeting or to a civic group. The DISCLOSE Act covers only donors who have invested $10,000 or more on federal campaign spending...

DISCLOSE would not disturb legal precedents that carve out disclosure exemptions for a small number of individuals and groups -- like civil rights organizations during the 1950s and '60s -- that can show how publicity about their political spending has triggered or would trigger serious harassment. It also would not remove or relax the criminal penalties now in place for individuals or groups that engage in serious harassment.

Since the Citizens United decision in 2010 invited corporations and unions to make unlimited "independent expenditures" in campaigns, not a single such harassment claim has been validated in court. State laws akin to DISCLOSE, passed recently in Rhode Island and near passage in Massachusetts, have not triggered harassment of campaign donors.

The real push against DISCLOSE is coming from or on behalf of corporations and wealthy individuals who worry that disclosure of their large campaign contributions and independent expenditures will disrupt their businesses and cut into their income. The First Amendment was never intended to provide people or businesses with protection from such free market consequences of their speech.

When it comes to DISCLOSE, the donor's interest in engaging in political speech anonymously must be balanced against the public's interest in knowing the people and institutions behind money spent to influence votes or to gain the attention and affection of public officials. In Citizens United, the holy grail for modern opponents of sensible campaign finance laws, an 8-1 majority of the Supreme Court found disclosure not only constitutional but vital to a healthy democracy.

The Senate should too.

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