Congress should reject unconstitutional campaign speech laws

by Nick Dranias
Goldwater Institute
In a new bill titled the DISCLOSE Act, U.S. Senator Charles Schumer has proposed burdensome new requirements for federal campaign spending in response to the January 2010 historic decision of the U.S. Supreme Court in Citizens United v. Federal Elections Commission. The House Administration Committee is scheduled to consider amendments today to the proposed law.

But in an open letter sent to Congress Wednesday, eight former Federal Election Commission commissioners, including Goldwater Institute Senior Fellows Lee Ann Elliot and Bradley Smith, ask federal lawmakers to defend the First Amendment’s protection of free speech. These eight experts say the DISCLOSE Act will repress campaign speech just liberated by the Supreme Court. With this public petition, the former commissioners have joined the Institute’s effort to make clear to lawmakers and to the public that complex and burdensome campaign spending rules interfere with everyone’s right to speak freely during elections.

According to the letter Senator Schumer’s bill “makes the law even more complex, more incomprehensible to ordinary voters, and more open to subjective enforcement and manipulation by those seeking partisan gain.” The letter’s analysis mirrors the reasoning of “Citizens United v. FEC: A Case for Limiting Campaign Finance Regulations,” a Goldwater Institute policy report that explains why federal and state governments should be scaling back campaign regulations instead of adding new ones.

The Citizens United decision struck down federal election laws that prevented corporations, unions and other groups from directly spending money on campaign messages in the days leading up to an election. Congress and states around the country are now required to rewrite their own election laws to lift such bans and ease requirements on people and groups who spend money on campaign messages.

Instead, the DISCLOSE Act attempts to bring back many of the unconstitutional restrictions. For example, it would prohibit any company with a federal contract of more than $50,000 from making any independent expenditures or electioneering. But this prohibition would not apply to government employee unions. The $50,000 threshold is so low that it would literally exclude thousands of businesses from engaging in constitutionally protected political speech, the very core of the First Amendment. Yet public employee unions that negotiate directly with the government for benefits worth many times more than $50,000 would have a free pass to speak their minds.

Sophisticated politicians can easily navigate complex campaign finance rules with armies of lawyers and other professionals. But most people won’t go to such lengths and that creates a barrier to the exercise of First Amendment rights that should no longer be tolerated.

Nick Dranias holds the Clarence J. and Katherine P. Duncan Chair for Constitutional Government and is Director of the Joseph and Dorothy Donnelly Moller Center for Constitutional Government at the Goldwater Institute.


  1. I cant stand the argument that major corporations do not have the necessary legal expertise to navigate the new laws. Its a pathetic argument, does walmart not have lawyers to get around these laws? Let’s be real here.

    Also the only restriction this article mentions is the 50,000 threshold is there anything else? A little more detailed explanation of the actual act would be nice since you claim it bring back “many of the unconstitutional restrictions.” What are these “many” yo cite 1….

  2. Tom Beebe says

    Why not limit campaign contributions to individuals, no groups of any sort allowed? After all, groups exist for a “special interest”. Require certification that the individuals are giving their own funds, and timely disclosure of the contributions. This might help clean them up on the way into office. Then let term limits clean them up (partially) thereafter. Who would put a lot of money into a lame duck. In view of the recent SCOTUS decision, the former would require an ammendment, as the latter obviously would. So let’s do it ! Nothing less will clean up the potomac swamp !

  3. Stephen Kohut says


    If you want to not use your first amendment rights have at it. My first amendment rights are protected by my second amendment rights so no touchie!

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