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Posted June 22, 2010 by Trevor Potter

DISCLOSE Act Treats Corporations and Unions Equally

The following letter to the editor was published in Politico on June 22, 2010.

In “First Amendment Freedoms for All” (June 18), Eugene Scalia insistently but unfairly maintains that the DISCLOSE Act favors unions over corporations. In fact, both are treated equally. 

The bill requires funding disclosure for all election advertising — union and corporate. 

In previous elections, unions and corporations spent millions of dollars on TV ads “paid for” by groups with patriotic-sounding names — leaving viewers with no idea of who was behind them. Under the DISCLOSE Act, these ads have to identify their actual funders. 

That is the most important element of the bill — and it applies equally to unions and corporations.

The bill prohibits those with federal contracts larger than $7 million from spending treasury funds for independent expenditures and electioneering communications. The treatment is identical for unions and corporations. 

Scalia notes a rejected amendment to extend “government contractor” prohibitions to unions by virtue of their role as bargaining agents for federal employees. Such negotiations do not involve the payment of government funds to union treasuries but, rather, affect workplace conditions and payment of individual employees. 

The focus of the provision has always been on entities — union or corporation — that receive government contract payments. If the standard were instead “all those entities which lobby or negotiate for benefits for their members,” we would be including virtually every group in the country seeking government action — a far broader reach than Scalia or I would support. 

Critics of the bill object to the $600-per-year reporting threshold for contributions to groups spending money on advertising, which they think exempts dues-paying union members. That is also true of most dues-paying members of AARP, the Sierra Club and any other advocacy group. 

The bill’s point is not needless disclosure of small donors but to capture the large money behind independent campaign advertising. 

Based on the legislative language’s equality of treatment, claims of union favoritism seem to be unsupported efforts to discredit the bill and stave off its primary goal: disclosure of those underwriting the massive independent expenditure campaigns that are coming to dominate our elections.

Trevor Potter
President, Campaign Legal Center
Republican FEC commissioner 1991-1995

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