Newspaper column: Rosen’s DISCLOSE Act really CHILL Act

Democratic Rep. Jacky Rosen, who is seeking Republican Sen. Dean Heller’s seat in the November election, has come out strongly in support of a bill that would require disclosure of donors to groups seeking to influence political issues and campaigns.

Rosen announced that she is a co-sponsor of the Democracy Is Strengthened by Casting Light On Spending in Elections (DISCLOSE) Act of 2018. She touted the bill using the latest Democratic hot button — the alleged use of foreign money to influence elections.

“Foreign money and influence have no place in American democracy,” Rosen proclaimed in a press release. “This legislation will help restore people’s trust in our democracy by shining light on dark money spending influencing our federal elections. Congress needs to step up and reform our broken campaign finance system, and I will keep fighting for measures that protect the integrity of our elections.”

The DISCLOSE Act has been backed by both Nevada Sen. Catherine Cortez Masto and her predecessor Harry Reid. In 2010, Heller voted against the DISCLOSE Act and in 2012 he missed the vote while campaigning.

One of the chief sponsors of the bill, Democratic Sen. Sheldon Whitehouse of Rhode Island, recently declared, “The American people should control our democracy, not special interests. Since the Supreme Court’s disastrous Citizens United decision, corporations and a small group of wealthy donors have smothered our democracy with sophisticated influence campaigns. Attack ads from their dark money groups flash on our screens with no way to know who’s behind them. And the same loopholes Citizens United opened for those special interests are available to the likes of Vladimir Putin or other foreign actors looking to undermine American democracy.”

But the bill, which has been stalled in Congress for years, would do far more than require disclosure of foreign cash.

It would mandate any group spending more than $10,000 on political ads to file a report within 24 hours with the Federal Election Commission and reveal the names of those who donate more than $10,000.

The Citizens United ruling in 2010 overturned a part of the McCain-Feingold campaign finance law that prohibited corporations and unions from spending money on “electioneering communication” 30 days before a primary or 60 days prior to a general election. Specifically, the law prevented the private group Citizens United from showing a video called “Hillary: The Movie.”

Though the ruling barred the censorship of electioneering communication, it did not go so far as to allow anonymous spending, thus leaving the door open for Congress to require spending reporting.

But in a dissent to this aspect of Citizens United, Justice Clarence Thomas took issue, saying the disclosure, disclaimer, and reporting requirements in McCain-Feingold were also unconstitutional.

“Congress may not abridge the ‘right to anonymous speech’ based on the ‘simple interest in providing voters with additional relevant information’ … In continuing to hold otherwise, the Court misapprehends the import of ‘recent events’ that some amici describe ‘in which donors to certain causes were blacklisted, threatened, or otherwise targeted for retaliation.’”

Thomas was referring to the 2008 California ballot initiative that attempted to prohibit same-sex marriage, noting that many supporters suffered property damage, and threats of physical violence or death. He wrote that requiring disclosure would chill protected speech.

“I cannot endorse a view of the First Amendment that subjects citizens of this Nation to death threats, ruined careers, damaged or defaced property, or pre-emptive and threatening warning letters as the price for engaging in ‘core political speech, the “primary object of First Amendment protection,’” Thomas concluded.

Then there is the 1959 case in which the Supreme Court held that Alabama could not require the discloser of the names of donors or members of the National Association for the Advancement of Colored People because such disclosure had resulted in “economic reprisal, loss of employment, threat of physical coercion, and other manifestations of public hostility.”

There was a reason Paine and Locke and Montesquieu wrote anonymously — lest they be hanged. There was a reason the Federalist and Anti-Federalist Papers were penned anonymously. There was a reason why Thomas Jefferson was an anonymous backer of Philip Freneau’s National Gazette, which savaged President Washington while Jefferson was in his cabinet.

Perhaps, instead of calling it the DISCLOSE Act, they should call it the CHILL Act — Citizen Harassment Initiative to Limit Locution.

A version of this column appeared this week in many of the Battle Born Media newspapers — The Ely Times, the Mesquite Local News, the Mineral County Independent-News, the Eureka Sentinel and the Lincoln County Record — and the Elko Daily Free Press.