Disclose Act - Motion To Proceed

Floor Speech

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Mr. McCONNELL. Mr. President, 8 years ago, Congress passed and the President signed a bill known as the Bipartisan Campaign Reform Act or BCRA. This bill was the culmination of a long and protracted battle in which I played a major part, as many of my friends on both sides of the aisle will recall. It garnered bipartisan support and bipartisan opposition. Many hearings were held, studies were conducted, and a lengthy record on both sides of the issue was developed.

I strongly opposed that bill. But I commend its authors for one thing: In drafting and passing BCRA, they made every effort to ensure that everybody had to play by the same rules--rules, moreover, that would not take effect in the middle of an election year. They wanted to make sure there was no appearance of giving one party a partisan advantage, and in that they succeeded.

Fast forward to today. Late last week, Democratic leaders decided to take us off of the small business bill to move to the DISCLOSE Act, a bill that is the mirror opposite of BCRA in the partisan way it was drafted and in the partisan way it is being pushed ahead of an election.

Let's be perfectly clear here. This bill is not what its supporters say it is. It is not an effort to promote transparency. It is not a response to the Supreme Court's ruling in Citizens United which has now been the law of the land for 7 months and which, contrary to the breathless warnings of some, has not caused the world to stop turning on its axis.

This bill is a partisan effort, pure and simple, drafted behind closed doors by current and former Democratic campaign committee leaders, and it is aimed at one thing and one thing only. This bill is about protecting incumbent Democrats from criticism ahead of this November's election--a transparent attempt to rig the fall election.

The supporters of this bill say it is about transparency. To that, I say it is transparent all right. It is a transparent effort, as I said, to rig the fall elections. They are so intent on their goal that they are willing to launch an all-out assault on the first amendment in order to get there. Democrats achieved something truly remarkable in drafting this bill. They united the ACLU and the Chamber of Commerce--quite an accomplishment--both, of course, in opposition. Why would they oppose it? Because it is as obvious to these groups as it is to me that the DISCLOSE Act is a clear violation of the right to free speech--a clear violation.

As usual with Democrats in this Congress, the process has not been any better than the substance. Over in the House, the Democratic campaign committee chairman sprung a rewrite of substantial portions that Republicans and even Democrats had not seen shortly before this bill was voted on. Not to be outdone, Democrats here in the Senate introduced a version last week that had been substantially rewritten since it was first introduced in April. In other words, the original Senate version was replaced under a veil of secrecy late last week, and that is the one the Democrats wish for us to proceed to today. A massive rewrite of the laws that govern elections, and Democrats want to give 6 days between introduction and a vote; a massive rewrite of the Nation's campaign finance laws without hearings, without testimony, without studies, and without a markup; another bill produced without a single hearing and placed directly on the calendar to bypass even the Rules Committee, which is supposed to have jurisdiction over this issue; a bill written behind closed doors with the help of lobbyists and special interests--all of this, all of this in the name of transparency. Forget the DISCLOSE Act. What we need is a ``Transparency in Legislating about Elections Act.''

This approach to this bill could not be more different than BCRA. However much I disagreed with that bill, it treated all groups, corporations, unions, parties, and individuals the same. From the ban on party non-Federal dollars to advertisement limitations within proximity of an election, BCRA's restrictions and prohibitions were applied evenly. The DISCLOSE Act is the opposite: 117 pages of stealth negotiations in which Democrats pick winners and losers, either through outright prohibitions or restrictions so complex that they end up achieving the same result.

The unions do not need a carve-out because they got exemptions. The new law applies to government contractors but not to their unions or unions with government contracts. Let me run that by you again. The unions do not need a carve-out because they got exemptions. The new law applies to government contractors, but not their unions or unions with government contracts. It does not apply to government unions. It applies to domestic subsidiaries but not to their unions or international unions. Through threshold and transfer exemptions, unions are the ultimate victors under this bill. I would note that numerous attempts were made to provide parity in the House Administration Committee markup. All were defeated on a partisan basis with no credible explanation. It is hard not to laugh in discussing this monstrosity we will be voting on shortly. And this is what they are calling transparency?

In their efforts to pass this partisan bill ahead of the election, Democrats have been forced to do the same kind of horse trading we saw in the health care debate. Some of the deals they struck were aimed at attracting special interest support, while others were aimed at quelling special interest opposition. In the end, they came up with a bizarre carve-out construct that grants first amendment freedoms to the chosen ones, and the results are not any prettier than the health care bill.

Follow this logic: The exemption applies to 501(c)(4)s, with 500,000 members in all 50 States plus Puerto Rico and the District of Columbia, in existence for 10 years, who receive less than 15 percent of their money from corporations or labor unions. In case you do not know who this provision is aimed at, it is a carve-out for the NRA, as well as the AARP and the Humane Society, among unknown others who may be in this category, but not to groups such as AIPAC or groups formed to advocate for victims of the oilspill or Hurricane Katrina.

So if you have 400,000 members, sit down and shut up. If you were founded in 2002, nice try, sit down. If you do not have the ability to recruit members in every State, zip it, shut your mouth. These are the contortions--the contortions--the authors of this bill had to go through to get it this far.

Worse still, the DISCLOSE Act mandates that its provisions shall take effect without--again, it is hard to go through this bill without breaking into unrestrained laughter--it mandates that its provisions shall take effect without regard to whether the Federal Election Commission has promulgated regulations to carry out such amendments. This, of course, will have the practical effect of paralyzing those who want to participate in the political process. If they do not know what the rules are, they will take themselves out of the game, which is clearly what the authors of this bill had in mind.

So let me ask a question. All of these new reporting obligations, filing requirements, certification mandates, and transfer burdens are to occur but how? How? Are there magic forms out there we do not know about? Do folks write e-mails to the FEC, the FCC, or the SEC? Maybe we bring back telegrams or use a Harry Potter owl or the Pony Express. Under threat of criminal sanctions, this provision is a clear message from the Justice Department to anyone covered by the new restrictions in this bill: Go ahead and speak. Make my day.

Lastly, recognizing the important constitutional questions at issue with BCRA--and everybody on both sides of that debate knew there were important constitutional questions involved--an expedited judicial review provision was included in that bill and subsequently used. But not so in this one. In order to make sure this bill is not held up by something as inconvenient--as inconvenient--as a challenge on first amendment grounds, its authors have made sure no court action interferes with their new restrictions this election cycle, and maybe even the next one as well. They add multiple layers of review, no provision addressing an appeal to the Supreme Court whatsoever, no time limits for filing, and no congressional direction to the courts to expedite. Again, the goal of the proponents of this speech rights reduction act is abundantly clear: Slow the process and secure new rules that help incumbent Democrats for the upcoming elections and for the foreseeable future.

The one goal here is to get people who would criticize them to stop talking about what Democrats have been doing here in Washington over the last year and a half, a need to shut those people up, a need to shut them up real fast here before the upcoming election.

The authors of the bill labored behind closed doors to decide who would retain the right to speak--in direct defiance of what the Supreme Court made clear this past January, when Justice Kennedy, writing for the majority, said:

[W]e find no basis--

``no basis''--

for the proposition that, in the context of political speech, the government may impose restrictions on certain disfavored speakers.

What could be more clear? ``[W]e find no basis for the proposition that, in the context of political speech, the government may impose restrictions on certain disfavored speakers.''

Not exactly an ambiguous holding. But that is, of course, precisely--precisely--what the DISCLOSE Act does. It imposes restrictions on speech. And I would note the one category of speakers upon whom the so-called reformers have bestowed the greatest speech rights in this bill are, of course, the corporations that own media outlets. So a company that owns a TV network, a newspaper, or a blog can say what they want, when they want, as often as they want.

BCRA was debated over the course of many years. Its authors also recognized the importance of not changing the rules on the eve of an election, which is why the legislation went into effect the day after the 2002 midterm elections. The DISCLOSE Act is the opposite. Seeking to achieve exactly what BCRA avoided, this legislation has an effective date of 30 days after enactment. If it were not already obvious that this bill is a totally partisan exercise, the effective date should be proof positive.

And those, Mr. President, are the facts.

I must admit it has been a few years since I was in law school. So after I learned about all these special deals, I went back to the first amendment to look for an asterisk or something indicating that only large, entrenched, and wealthy special interests get the ``freedom of speech.'' I went and looked at the first amendment again to look for an asterisk or something indicating that only large, entrenched, and wealthy special interests get the ``freedom of speech.''

I could not find it. So I pulled out this Analysis and Interpretation of the Constitution, thinking maybe it could be found there. I looked and looked, again, to no avail. Then it occurred to me, perhaps on that winter day in 1791, when the first amendment became effective, these rights were meant to apply to everyone--everyone. Perhaps it is true the first amendment was adopted to protect the people from the Congress, to protect them from laws such as this one, to protect them from a government that picks winners and losers, to protect them from an overreaching government that is supposed to derive its powers from the consent of the governed.

This DISCLOSE Act is not about reform. It is nothing more than Democrats sitting behind closed doors with special interest lobbyists choosing which favored groups they want to speak in the 2010 elections, all in an attempt to protect themselves from criticism of their government takeovers, record deficits, and massive unpaid-for expansions of the Federal Government into the lives of the American people. In other words, this is a bill to shield themselves from average Americans exercising their first amendment rights of freedom of speech.

Americans want us to focus on jobs, but by taking us off the small business bill and moving to this one, Democrats are proving the jobs they care about the most are their own. By moving off of the small business bill and moving on to this one, our Democratic friends are letting us know the jobs they care about the most are their own. Think about it. Here we are in the middle of the worst recession in memory, and Democratic leaders decided to pull us off a bill that is meant to create jobs in an effort to pass this election-year ploy to hold on to their own jobs. What could be more cynical than that? A ``yes'' vote on this bill will send a clear message to the American people that their jobs aren't as important as the jobs of embattled Democratic politicians.

In closing, let me just note that hundreds of ideologically diverse organizations oppose this bill and have provided us with valuable information on its various absurdities. But I think the ultimate test of this bill's legitimacy is pretty simple. If the Founding Fathers were here, they would remind us. They would hold up the Constitution and remind us of the oath we took to support and defend it.

As Members cast this vote today, they will come to the well and look at the desk to see what the well description says--the sheet of paper that sums up what this vote is about. On the Democratic side, I am sure it will include words such as ``transparency'' and ``disclosure'' and talk about the threats to democracy if the bill isn't passed. On our side, it will be simpler. The copy of the Constitution will serve as our well description, and, more importantly, it will remind us of why we are all here. We are here to protect the Constitution, not our own hides.

Mr. President, I yield the floor.

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