Last week, the Federal Election Commission (“FEC”) adopted an advisory opinion in response to a request from Commonsense Ten, a Democratic soft money group that intends to air advertisement protecting Democratic incumbents and attacking Republican candidates. The FEC advisory opinion request sought confirmation that independent expenditure PACs established pursuant to the SpeechNow.org federal court opinion may solicit and accept donations from corporations and labor organizations.
Buried on footnote 3 of Advisory Opinion 2010-11 is a simple statement that may provide a commonsense comment on the DISCLOSE Act’s disparate treatment of corporations and labor unions. Footnote 3 states:
Although Citizens United did not directly address whether labor organization also have a First Amendment right to use their general treasury funds for independent expenditures and electioneering communications, the Act and Commission regulations generally treat labor organizations in the same way as corporations. The Court’s decision suggests no basis for treating labor organization communications differently than corporate communications under the First Amendment. (emphasis added)
It’s important to remember that the DISCLOSE Act’s expanded federal government contractor and foreign national bans only apply to corporations and not labor unions. In addition, the draconian disclosure requirements have been carefully tailored to exempt labor unions from many of the disclosure requirements while any incorporated entity – including new grassroots organizations – suffer the full effect of the burdens imposed by this misguided legislation.
There is no basis to treat similarly situated labor organizations and corporations differently other than to tilt the playing field in favor of the Democratic Party. The DISCLOSE Act seeks to suppress the political speech of the business community in an effort to elevate the speech of labor unions, the Democratic Party’s traditional soft money allies.