The "New Sedition Act?"

Tuesday, May 25, 2010

House Democrats have tentatively scheduled for a floor vote this week a measure that a conservative blogger is calling the "New Sedition Act." The aim of the bill is to, "counter the Supreme Court’s Citizens United decision," which struck down key elements of McCain-Feingold, a fact that was not lost on an unhappy Barack Obama:

The measure would require new disclaimers on all TV ads funded by corporations, essentially forcing CEOs to endorse the ads, just as politicians currently do. There are several other regulations that raise free speech concerns, including disclosing the names of donors in TV ads and restricting political ads from companies that are partially owned by foreign businesses or receive taxpayer funds. The U.S. Chamber of Commerce has called it a "massive incumbent protection program."
In addition, Erick Erickson of Red State sees a direct threat to bloggers (HT: Dismuke) in the language of the bill:
... In current federal campaign regulations, "public communication" is defined to explicitly exclude internet communications. This keeps exchanges amongst citizens on blogs like RedState from coming under the onerous and prohibitive campaign speech regulations of the federal government.

BUT -- in the DISCLOSE Act, where the bill addresses what would be covered by a host of the bill's new federal campaign regulations, the term "communication" is used. Not "public communication," but "communication." This means, internet communications are not protected.

Here's the exact language from one section of the bill: "a publicly distributed or disseminated communication that refers to a clearly identified candidate for Federal office and is publicly distributed or publicly disseminated during such period." And there are other problematic uses of "communication" throughout the bill.

Plus, the media exemption in the bill does NOT include "web site" or "any internet or electronic publication" -- terms added to federal campaign regulations in 2006 to protect blogs.

This is no accident. These are not drafting errors -- as they appear too often throughout the bill to be an "Ooops." [minor format edits]
I am not a legal professional, but this sounds plausible to me. I would be curious to hear from anyone with legal training or legislative experience who happens by.

Interestingly, a very brief bit about the bill at the web site of a media outlet in one of Obama's hometown papers dismisses the bill as "DOA."
Nice try, congressmen. But you still don't get it. The Disclose Act, your latest stab at campaign finance rules, repeats many of the mistakes that the U.S. Supreme Court rejected in January when it tossed out federal limits on corporate spending for political advocacy.
I presume that the Tribune means that, if passed, the bill will be stuck down. Left unmentioned is the fact that Citizens United was a 5-4 decision. How might that change, if Congress passes this and the new law gets a hearing before the Supreme Court? I doubt that, if confirmed Supreme Court nominee (and Solicitor General for the Citizens United case) Elena Kagan would vote against it, based on the following:
In an unconventional line of argument, Kagan seemed prepared to grant that non-profits like Citizens United, which produced the critical Clinton documentary, were not subject to the restrictions of 2002's McCain-Feingold bill, so long as restrictions for for-profit corporations remained in place.

In response to the suggestion by Chief Justice John Roberts as to whether she -- and by extension the government -- had decided to strategically "give up" the particulars of the case to preserve the broader impact of McCain-Feingold, Kagan responded:

"If you are asking me, Mr. Chief Justice, as to whether the government has a position as to the way it loses, if it has to lose, the answer is yes."
Should Obama have an opportunity to replace a "yes" vote on the Supreme Court before such a hearing, it looks to me like we could end up having something worse than McCain-Feingold foisted on us thanks to this bill, even if Kagan were to recuse herself (although I am not sure she would necessarily have to do so).

I, for one am hardly comfortable calling this travesty DOA.

-- CAV

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