[EL] ELB News and Commentary 12/20/11

[BZall at aol.com]

Of course, a later case than Branch Ministries said this about the  "create 
a PAC" option as permitting speech regulation:
 
Section 441b is a ban on corporate speech  notwithstanding the fact that a 
PAC created by a corporation can still speak.  See McConnell, 540 U. S., at 
330–333 (opinion of KENNEDY, J.). A PAC is a  separate association from the 
corporation. So the PAC exemption from §441b’s  expenditure ban, 
§441b(b)(2), does not allow corporations to speak.

Even if a PAC could somehow allow a corporation to  speak—and it does not—
the option to form PACs does not alleviate the First  Amendment problems 
with §441b. PACs are burdensome alternatives; they are  expensive to administer 
and subject to extensive regulations. For example, every  PAC must appoint 
a treasurer, forward donations to the treasurer promptly, keep  detailed 
records of the identities of the persons making donations, preserve  receipts 
for three years, and file an organization statement and report changes  to 
this information within 10 days. See id., at 330–332 (quoting MCFL, 479 U.  
S., at 253–254). And that is just the beginning. PACs must file detailed 
monthly  reports with the FEC, which are due at different times depending on the 
type of  election that is about to occur:
...
PACs have to comply with these regulations just to  speak. This might 
explain why fewer than 2,000 of the millions of corporations  in this country 
have PACs. See Brief for Seven Former Chairmen of FEC et al. as  Amici Curiae 
11 (citing FEC, Summary of PAC Activity 1990–2006, online at 
_http://www.fec.gov/press/press2007/_ (http://www.fec.gov/press/press2007/)  
20071009pac/sumhistory.pdf); IRS, Statistics of Income:  2006, Corporation Income Tax 
Returns 2 (2009) (hereinafter Statistics of Income)  (5.8 million for-profit 
corporations filed 2006 tax returns). PACs, furthermore,  must exist before they 
can speak. Given the onerous restrictions, a corporation  may not be able 
to establish a PAC in time to make its views known regarding  candidates and 
issues in a current campaign. 
 
Citizens United, 558 U.S. __, __, slip op. 21-22. And in the  nonprofit 
organization context, the need to insulate the c3 from the PAC might  or might 
not be considered an additional burden under League of Women  Voters, Regan 
and Citizens United. The test of a  governmental interest, as I noted, ap
pears to now be limited to whether  there is quid pro quo corruption. This is 
in tension with the "tax  expenditures/subsidy" equation in use previously. 
 
The night is still young on the resolution of this question. We shall  see.
 
A happy holiday season to all!
 
Barnaby Zall
Of Counsel
Weinberg, Jacobs & Tolani,  LLP
11300 Rockville Pike, Suite 1200
Rockville, MD 20852
301-231-6943  (direct dial)
_www.wjlaw.com_ (http://www.wj/) 
bzall at aol.com



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In a message dated 12/22/2011 5:10:32 P.M. Eastern Standard Time,  
ellen.aprill at lls.edu writes:

The c-3  can establish a c-4; the c-4 in turn can establish a PAC.  The DC 
Circuit  in Branch Ministries a case from 2000, rejected the argument that  
the need to take both these steps in order to express views on candidates  
without any limit would be an impermissible burden.  The Circuit Court  
relied on both Regan and League of Women Voters for that  conclusion.  


Ellen  


The c-4 itself, as I noted earlier, can express views on candidates, so  
long as such is not its primary  activity.





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