FEC told to tread carefully with post-Citizens United rule

The Supreme Court ruling two years ago upended the campaign finance system by clearing the way for corporations and unions to independently raise and spend unlimited funds in elections. 

The proposed FEC rule, “Independent Expenditures and Electioneering Communications by Corporations and Labor Unions,” had been called a “housekeeping measure” by campaign finance attorneys. 

But panelists pushed the commission to implement the Citizens United changes clearly and leniently for groups because “now the presumption is freedom.”

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“The regulations as they currently exist were based upon the idea that there was a corporate prohibition, and the FEC was then involved in the enterprise of implementing certain exceptions,” said James Bopp Jr. of the James Madison Center for Free Speech.

“Well now of course that has been reversed 180 degrees. Now the presumption is freedom,” he said. 

The FEC offered a variety of alternatives to make regulations work in the post-Citizens United era. The rule would remove and change certain language to allow corporations and unions to raise and spend money in line with the Supreme Court’s decision.

Five groups were represented on the witness panel, including the James Madison Center for Free Speech. The other panelists came from the Alliance for Justice Action Campaign, the U.S. Chamber of Commerce, the American Federal of Labor Congress of Industrial Organizations and the Center for Competitive Politics. 

Panelists cautioned the commission to be clear with its language and keep the rulemaking as simple as possible in order to avoid confusion and court challenges. 

“Given legal developments to specify what a voter guide is and to have particular restrictions on their composition, which clearly if enforced would be subject to challenge and overruling … by a court does not seem to us to be the best way to go here,” AFL-CIO’s Laurence Gold said, explaining the need for simplicity and clarity.

Alison Hayward of the Center for Competitive Politics emphasized the importance of voting activities being protected, an area she said the new regulations could touch.

“How ironic would it be for the consequence of Citizens United to be that communications — that is ads about candidates — are somehow more protected than voter registration and Get-Out-the-Vote activity,” Hayward said. 

Commissioner Steven Walther asked panelists if it would be “responsible… to sit tight and see what [Supreme Court] might be doing” on a court case aimed at repealing Citizens United in Montana.

Bopp rebutted Walther immediately, arguing the commission shouldn’t “wait and hope and pray” for the Supreme Court to take up the Montana case.

“This isn’t optional for you to wait for some future case in hopes ... of the reversal of Citizens United,” Bopp said.

“You can’t look to the Montana case and hope that your statutory provision is going to be resuscitated. It won’t be, no matter what the decision.”

Not all sides were represented on the panels. Notably absent were key Washington watchdogs like Campaign Legal Center and Democracy 21.

Others comments sent to the commission prior to the hearing asked for more time "until 'expert research' is conducted on a number of issues before engaging in broader rule-making, according to the rulemaking documents. Another commenter "expressed concern that the Court's decision and any subsequent rulemaking implementing the decision would reduce transparency of corporate spending on Federal elections."   

The well-known divide among the commissioners was on full display at the hearing.

Commissioner Ellen Weintraub noted “the free-speech crowd once again is interested in banning discussion on anything that they do not want to talk about today.” Commissioner Caroline Hunter argued that Weintraub was speaking outside the scope of the proposed rule, and therefore not appropriate for the hearing.


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