In 2010, the U.S. Chamber of Commerce launched an ad campaign in the nation’s capital attacking proposed legislation requiring that political ads disclose the names of the anonymous corporations and trade associations that bankroll them. The ad claims the Democracy is Strengthened by Casting Light on Spending on Elections (DISCLOSE) Act (H.R. 5175 and S. 3295) would violate the First Amendment by silencing corporate free speech.

Contrary to the ad’s claim, the DISCLOSE Act is designed to require disclosure of top contributors to particular kinds of ads in election campaigns - those that expressly advocate for a candidate. The bill is a response to a January Supreme Court decision that invalidated portions of campaign finance law. The Court held that corporations and other organizations enjoy the same first amendment rights as people, and so may spend unlimited general treasury funds in express advocacy ads leading up to elections.

Recognizing that the decision opened doors to greater amounts of spending by corporations and other organizations in elections, Rep. Chris Van Hollen (D-MD) and Senator Chuck Schumer (D-NY) authored bills designed to force all big spenders on election ads to reveal where their funding comes from.

The proposed law does not prohibit groups like the U.S. Chamber from engaging in political speech, and nor does it apply to the vast majority of the U.S. Chamber’s members (though it does restrict political ad spending by recipients of outstanding TARP funds, beneficiaries of some federal contracts, and foreign-based corporations like BP). 

But the U.S. Chamber aggressively opposes the act. Top Chamber lobbyist Bruce Josten said that if the Chamber’s opposition to “card check” legislation strengthening labor rights was a “10,” “to us, this is a 25.”

The U.S. Chamber of Commerce is single the highest-spending group in federal elections: In 2008, the U.S. Chamber spent $60 million influencing elections and promised it would spend at least $75 million on federal elections during the 2010 election cycle. The U.S. Chamber is able to collect and spend such vast amounts of money because it uses its brand to shield the identities of the corporations that fund its political program. Under current law, the U.S. Chamber isn’t required to disclose the names of donors to its political program, and whenever asked, its leadership refuses to comment.

“You don’t want a disclaimer to say, ‘Paid for by Exxon Mobil.’ It’s far more effective to say, ‘Paid for by the U.S. Chamber of Commerce,’”  -Michael Toner, former Republican FEC Commissioner

As the U.S. Chamber explained in its Citizens United friend-of-the-court brief, the reason no Chamber donors are disclosed is because "[m]any of its members have made clear that they are not willing to be identified and will terminate or withhold support if disclosure becomes a risk.”

Therein lies the source of the Chamber’s opposition. The U.S. Chamber’s arguments – ranging from constitutional allegations to assertions of “no fair” – reflect a sense of desperation. So do its actions –ads, frequent blogging, letters to Congress, and scoring votes on the bill in its annual How they Voted Scorecard. The U.S. Chamber is acting desperate because it is desperate. It does not want to disclose who funds its political program because it knows the corporations that pay it millions of dollars to further their political agendas do not want to reveal themselves. If forced to attach their names to their positions, these corporations might as well fund advertisements themselves, cutting out the U.S. Chamber’s role as middle man in elections.

Fiction versus Fact: Independent Voices Rebut the Chamber

Because it has so much at stake, the Chamber is reaching for any argument it thinks will have sway.  Independent voices have rebutted the Chamber's claims about the DISCLOSE Act time and again.

“H.R. 5175 is an assault on first amendment rights.”

The Supreme Court is clear that mandated disclosure of political spending is not just constitutionally permissible but a critical component of democracy. Justice Kennedy wrote: “The First Amendment protects political speech; and disclosure permits citizens and shareholders to react to the speech of corporate entities in a proper way. This transparency enables the electorate to make informed decisions and give proper weight to different speakers and messages.”

The bill “silences” businesses.

The bill’s disclosure requirements do not silence most businesses (though it places restrictions on funding by recipients of outstanding TARP funds, beneficiaries of government contracts worth more than $7 million and foreign-owned entities). The Chamber and most of its members are subject only to the disclosure provisions of the bill. The Congressional Research Service explains, “Ultimately, corporations, unions, and other groups intent on making independent expenditures and electioneering communications could choose to do so regardless of disclosure or disclaimer requirements. The additional reporting requirements proposed in the bill might, however, cause potential advertisers to consider whether they wish to be publicly accountable for the advertising.”

The bill is being rushed through the House to protect incumbents; it is a measure of political expediency.

The U.S. Chamber has tried to cast the DISCLOSE Act as a partisan measure since before the bill was introduced in the Congress. But political expediency is not the goal. Congress is doing what the American people want (80% oppose Citizens United), rather than heeding special interests. Allison Hayward, Assistant Professor of Law at George Mason University School of Law writes for the Federalist Society, “The DISCLOSE Act's 'stand by your ad' requirement is designed by its authors to provide the public with information about who is paying for and authorizing an expenditure.  It is also designed to make an identifiable individual accountable for the content of a given advertisement.”

Corporations have first amendment rights, like people.

The Chamber is missing the Supreme Court’s target in Citizens United - corporate shareholders, not corporate managers. Harvard Professor John C. Coates IV explains that the DISCLOSE Act is necessary to prevent corporate managers from exploiting the decision. “In stark terms, the risk is that corporate managers will steal shareholder money, and pervert the very First Amendment rights – the rights of corporate owners – that the slim majority in Citizens United purported to protect.”

“There is no urgency for Congress to act… there is no 'crisis' for which H.R. 5175 is a solution.”

Meredith McGehee, executive director of the Campaign Legal Center, explained: “core provisions of the bill – ensuring that money laundered through third party groups is disclosed, closing the gap created by the Citizens United decision in the ban on foreign nationals from influencing U.S. elections, strengthening current rules (which are notoriously weak) governing coordination of activities with candidates and parties and enhancing disclosure of political expenditures made by corporations, unions, 527 organizations, and 501c groups – are too important to be deep-sixed...”