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.

In this instance, Rick looks to the letter of the law as written on foreign national political activity and asks that our faith be placed in it, as the Court has apparently done.  But on another occasion, Rick has taken the Court to task for ostensible “political naiveté” in disregarding the real-world consequences of its decision. He was critical of the studied innocence of McCutcheon and in this respect was sympathetic to the Breyer dissent. In that case, Breyer questioned how, if the aggregate contribution limits fell, the law could effectively protect against circumvention of the “base,” per-candidate, limits. The rules on the books were powerless against the “more subtle and more complex” methods of achieving circumvention, and this explained how, “in the real world,” conduct to evade limits could escape FEC enforcement action. McCutcheon v. Federal Election Commission, 134 S. Ct. 1434, 1478 (Breyer, J., dissenting).

Rick was then impressed that Breyer “provide[d] all kinds of examples in which the demise of the aggregate contribution limits can lead to the reemergence of soft money systems and major fundraising by elected and party officials.”  Only the truly naïve could imagine that the FEC could or would enforce rules to avert these outcomes, let alone have confidence that Congress would bolster enforcement with new legislation. The Court must have known better.

So how then, on this mode of analysis, is the Court not fairly charged with the same sham “naiveté” in Citizens United?  When it struck down the ban on corporate spending, it cleared the way for foreign-controlled companies to make independent expenditures, and the work of preventing foreign nationals running these companies from directly or indirectly “participating” in this activity fell to the FEC and the unlikely enforcement of a vague rule.

Rick’s answer is that foreign national “participation” in elections would be illegal. But, as Justice Breyer stressed in McCutcheon, the issue is not what is clearly illegal but what, through “subtle” and “complex” means of circumvention, can be done to get around the rule. And here enters the doubt that many have—and that Rick has expressed on many other occasions—that the FEC can be relied on to stop these end-runs.  And it is not clear why the Court would have placed any more weight in Citizens United than in McCutcheon on  Congress’ willingness or ability to legislate against predictable circumvention.

Neither Congressional action nor muscular FEC enforcement would be an issue if the corporate spending ban had remained in place. Now that CU has done away with it, the consequences include a risk of foreign national influence in the electoral process that did not exist before.

It is not false to say this, and it is anything but naïve.

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