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Who would’ve known that the DISCLOSE Act calls for burning books, regulating the Internet – and even creates death panels?


Sophists have long known that when you cannot defeat a proposal based on merit, then resort to groundless – or even false – accusations to create hysteria and confusion over the proposal.

Those opposed to the recent health care reform legislation did exactly that when they invented the myth that the legislation would create the infamous “death panels” – government health officials ready and eager to pull the plug on granny when she gets too old. It was nonsense, of course. There was nothing in the legislation that would create death panels. But that wasn’t the point. The point was to spread hysteria and confusion about the legislation in order to defeat it.

We are now hearing some of the same sophistry from opponents of the DISCLOSE Act (H.R. 5175), legislation in response to the Citizens United decision, in which the Court ruled that corporations may make unlimited expenditures in elections. The DISCLOSE Act is a good but modest bill designed to open the books on who is paying for these unlimited independent expenditure campaign ads.

At the May 6th hearing before the House Administration Committee on the DISCLOSE Act, one opponent of the transparency measure – former Bush Administration solicitor general Ted Olson – suggested that the legislation could lead to banning books that advocate the election or defeat of candidates. It was an argument that effectively alarmed the Supreme Court during the Citizens United oral arguments, so Olson thought it might have the same effect on the DISCLOSE Act.

When asked during oral testimony whether the Act could ban books, Olson quickly responded that, yes, it could. But then he went on in the same breath and eventually concluded that the media exemption in the DISCLOSE Act would in fact exempt books from the disclosure requirements. So, no, it wouldn’t. But the idea of the DISCLOSE Act leading to book burning is now out there for public consumption.

At the next hearing on the DISCLOSE Act before the same committee the following week, another hysterical myth was floated – this time by Patton Boggs attorney William McGinley. Though McGinley was careful not to make such allegations in his written testimony where he could be held accountable, he blurted out in oral testimony that the legislation could lead to regulation of the Internet and the blogosphere. The bill, suggested McGinley, changes the definition of “independent expenditure” subject to the disclosure requirements to include Internet communications and blogs!

In fact, section 201(a) of the DISCLOSE Act only adds to the definition of “independent expenditure” those communications that are the “functional equivalent of express advocacy.” The DISCLOSE Act does not in any way change the definition of “public communication” as it exists in federal election law and the implementing regulations. Thus, it leaves in place the carefully worked out provisions of FEC regulations that exclude blogging and similar internet activity from the definitions of “expenditure” and “public communication” under campaign finance laws. The additional reporting requirements of the DISCLOSE Act do not change the existing exemptions for Internet communications and blogging under federal campaign finance law at all.

But that’s not the point. The point is to spread hysteria and confusion about the legislation in order to defeat it.

Craig Holman is the government affairs lobbyist for Public Citizen.