Sen. Cornyn Outlines Harmful Impacts Of Politically Charged DISCLOSE Act

I spoke on the floor today in opposition to the partisan DISCLOSE Act. Below is the full text of his remarks, as prepared for delivery:

Mr. President, this afternoon the Senate will vote on cloture on the motion to proceed to S.3628, the DISCLOSE Act.

This bill was introduced less than a week ago. At the time that cloture was filed, the bill was so new that it was not even available on the Senate’s web site.

This bill represents another attempt by my colleagues to rush through legislation that restricts freedom and creates more federal regulation, without giving the American people the opportunity to understand what it does.

This bill would fundamentally remake the rules and regulations governing the exercise of free speech in American elections.

We should be extra cautious in legislating in this area for three reasons:

First, regulation of speech always raises significant First Amendment questions. The First Amendment is a cornerstone of our democracy. Political speech about candidates for elected office is at the core of the First Amendment.

Second, regulation of campaign speech often has unintended consequences. The Bipartisan Campaign Reform Act of 2002 – also known as BCRA or McCain-Feingold – was passed with the best of intentions. But it has resulted in an exponential increase in the amount of money in politics. In the 2008 election cycle, President Obama and Senator McCain raised and spent nearly twice as much money as President Bush and Senator Kerry did in 2004. In fact, together the two presidential candidates in 2008 spent more money for the general election than did all the presidential candidates between 1976 through 2000 – combined. The BCRA has also led to the creation of a cottage industry of 527 groups and other entities that have poured massive amounts of money into campaigns with less transparency than existed before.

The third reason that we should be especially careful when regulating political speech is that Senators have a conflict of interest. Our jobs depend upon the rules surrounding campaigns and elections. So there’s a natural temptation for the Senate majority to change the rules in a way that helps its own chances of reelection.

So the question is: does this bill resist the temptation to rewrite the rules to benefit the majority party? Or does this bill succumb to that temptation?

I believe that this bill succumbs to temptation. This bill would silence critics of the majority party and protect some of their closest allies and special interests.

This bill favors unions over job creators in several ways. It would silence businesses with significant foreign shareholders, but protect unions with significant foreign membership. It would silence businesses with government contracts, but protect unions of government employees – and unions who work on government contracts. It would silence companies that receive bailout funds, but protect unions who represent those same companies’ employees.

Labor unions aren’t the only allies of the majority party to receive special treatment. The bill protects limited liability partnerships and other business models favored by trial lawyers. The bill creates carve-outs for the largest, wealthiest, and most powerful Washington-based special interest groups – such as the NRA and the AARP.

And the bill also favors large corporations over small businesses – and Washington-based special interests over grass roots movements. How does the bill favor the established Washington power brokers over ordinary Americans seeking to exercise their political freedom? It’s simple. By setting up a byzantine labyrinth of regulations and disclosure requirements, the bill will ensure that only large organizations with the resources to hire expensive Washington election lawyers will be able to exercise First Amendment rights.

There are enough loopholes that a corporation or union large and sophisticated enough to set up a PAC or a segregated account for political spending can largely evade the bill’s restrictions on speech.

But a small business or a grassroots group of citizens is unlikely to have a Washington insider election lawyer on speed dial, and probably wouldn’t be able to afford one if they did. And if you can’t afford to comply with the bill’s onerous regulations, then you aren’t allowed to speak at all.

Why are my colleagues supporting this bill? I can think of two reasons:

First, some of my colleagues fear the righteous judgment of the American people this November. So they are trying to change the rules in the middle of the game.

Bradley Smith, a former chairman of the Federal Election Commission, put it this way: He said that the DISCLOSE Act should stand for “Democratic Incumbents Seeking to Contain Losses by Outlawing Speech in Elections.”

Second, it’s clear that some folks in Washington just like silencing the American people on general principle.

Other attempts to do so have included: asking citizens to forward their neighbors’ criticisms of the Administration to a White House email account; sending cease and desist letters to companies who criticize ObamaCare; and efforts to bring back the Fairness Doctrine.

I don’t know whether my colleagues are pushing this bill to protect their political power or for the sheer joy in telling the American people to be silent.

But whatever the reason, I oppose this bill and urge my colleagues to oppose this afternoon’s cloture motion.

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