Rick Hasen has written a crisp reply to the posting here and defends his position that it is false—simply false—to say that Citizens United allows for unlimited foreign corporate spending in federal elections. It is illegal, he argues, for foreign nationals to influence elections, and CU did not change that. In fact, in a later decision, the Court expressly upheld the ban on foreign national contributions and expenditures.
Just as Rick insists that the position taken here won’t “fly,” it is hard to see how his response really gets very far down the runway—particularly considering what he has astutely said before on much the same question of how to judge the Court’s performance in campaign finance cases.
Rick Hasen has twice posted in the last several days a sharp criticism of the President’s fifth anniversary statement about Citizens United. He objects to the assertion that Citizens United opened up the avenue for unlimited foreign corporate spending in the United States. Rick says this is false, citing in support of that position PolitFact’s prior rating of that statement as “mostly false,” which that fact-checking enterprise arrived at after originally rating the statement as “barely true.” And a review of PolitiFact’s analysis reveals that a statement merits criticism as “mostly false” if it is an ”overstatement.”
Readers will probably think very little is at stake in tracing the chain of reasoning from false to mostly false to barely true, or somewhat true, or whatever, and trying to sort out what fine differences distinguish one of these ratings from the others. But because Rick stakes out a strong position—that the statement is simply “false” —he should have a high degree of confidence that it is a black-and-white matter subject to no disagreement.
Some weeks ago, a number of individuals with different professional backgrounds and perspectives on campaign finance came together to urge the Federal Election Commission to take certain initiatives to improve the enforcement of the law. (I was one of them.) In a period of difficult, highly contested constitutional and legal questions, the FEC is in a difficult position, often charged with the perceived “sins” of others and itself divided over regulatory direction.
But in this turbulent period, a key step for the agency is to define the available paths toward clear law, accessible and regularly updated guidance to those subject to the Act, and strengthened compliance and bipartisan enforcement. The signatories to the letter urged that the Commission consider revisions to “advance core regulatory purposes and policies in the public interest, such as the more effective implementation of well-established disclosure requirements.”
Today, in a further step, the same group has filed a Petition for Rulemaking, calling on the Commission to implement the statutory mandate to expand the Administrative Fines Program, address ambiguities, omissions and uncertainties in its guidance and reporting forms, and generally improve the enforcement of the disclosure provisions. Once again, the signatories are unified in their view that this is a critically important function for the FEC to play, and that respect for the law and the prospects for successful compliance depend on sound administration of core statutory requirements.
The five year anniversary of Citizens United finds critics largely where they stood when the opinion as first issued. Enthusiasts remain cheered and critics have lost none of their gloom. One difference is that time has passed and the inquiry has shifted from predictions about what CU will have wrought to claims about what the data shows about its effects. There is no agreement here, either, and any one analyst’s interpretation of data typically corresponds closely with her heartfelt views of the decision’s rightness or wrongness. Like most campaign finance debates, this one does not change minds. We are in for endless and inconclusive argument about CU’s contribution to oligarchic rule, or its responsibility for “dark money, or for trends identified in the volume of money spent in politics.
These “big picture” disputes may block a clear view of other, more subtle but still significant changes in campaign finance doctrine and practice brought about or encouraged by CU. These are changes that can’t be precisely pinned to CU alone: the whole course of campaign finance doctrinal development was driven, principally by Buckley, in particular directions, and CU, after all, is an “independent expenditure” case the logic of which rests in the main on the 1976 case. But CU as a case about independent corporate spending, and about campaign finance regulation more generally, occupies a special, prominent place in this history, and it is in this context that it might be best understood.
As the Supreme Court prepares to hear argument on the challenged ban on personal fundraising by judicial candidates, writers arguing for the preservation of this prohibition continue to make their case. Kate Berry of the Brennan Center replies to a posting here and disagrees with the proposition that it is hard to see a major benefit from a restriction on speech described as “modest.” Garrett Epps shares her position that the prohibition should be upheld. In each case, the writers maintain that if we have to have judicial elections, they should be subject to special rules to safeguard public confidence in an independent judiciary and that this is one such rule.
What is offered in support of this position?
- Regulatory Matters: On Fines, Supreme Court “Recommendations”, and the FEC Hearing on Responses to McCutcheon
- Houston Has a Problem: The Constitutional Problems with Temporal Bans on Contributions
- Complex Rules and the Choice of Enforcement Model
- Inexpensive Issues Speech and the Regulation of Impact
- A Minor Measure with Major Benefits before the Supreme Court?
- The Privacy-Disclosure Balance and Its Complications
- Perspectives on Campaign Finance Reform in the Next Phase
- A “Third Approach” to Reform?
- The Bright Line Project, The IRS, and The Question of “Issue Ads”