I just want to echo Brian's
point as one that matches up with what I've seen in the wake of WRTL, CU, and
other recent cases held up by some as blows against overweening administrative
regulation of the connections between money, politics, and public
policy.
The corporate expenditure
prohibition is indeed gone, which does eliminate that issue, and which
therefore tees up the next questions including (1) whether disclosure is
triggered, if so to which agency or agencies, and to what depth; (2) whether
the communication is coordinated to a degree that would turn a perfectly legal
and unlimited expenditure into an illegal in-kind contribution (which also
would typically exceed any applicable contribution limit(s) by several orders
of magnitude); and, of course, (3) whether the corporation in question is
subject to the foreign national restrictions which, while not exactly simple
to apply, we're assured are nevertheless comfortably consistent with the reasoning of
these other strikes against other expenditure restrictions. (So more
corporate political speech is a good thing, despite the
corporate form - but just for some corporate speakers, not all
of them. Depends, you see, on the *makeup* of the corporation(s) in
question...)
And of course there's still my
personal hobbyhorse, whether the scope and magnitude of a given
independent expenditure or the ancillary private communications about
that expenditure - especially if subject only to superficial disclosure
about funding - tees up Caperton-style questions about opportunities for undue
influence on elected officials and potential criminal law exposure
under bribery, anti-gratuities, or honest services fraud theories.
I still haven't been on a conference call
with six lawyers about a given political activity (Lloyd, I think I'm
jealous!), but the recent direction of the law makes me think that kind of
thing is only more likely going forward, not less.
I'm not sure I would ascribe the significance that
Lloyd does to the lower transaction costs of corporate
spending. One of CU's ironies is that the Court railed against "prolix
laws" that "chill speech." But then it invalidated the only simple part
of BCRA Title II, which was the ban on corporate and union electioneering
communications. It left the statute's disclosure, disclaimer and
stand-by-your ad provisions intact. In this, the Court recalled the
Fourth Circuit in Leake, which criticized the "impossible complexity" of
the campaign finance laws -- and yet still left the North Carolina State
Board of Elections functioning pretty much as it did
before.
More significant, I think, are the reactions to CU by the
regulators -- and also by the regulated, who are making battlefield decisions
about legal risk, and hence helping to define the norms by which the
regulators will assess their conduct later. Having once viewed McConnell
as the invitation to do a good chunk of whatever it wants, the FEC now seems
to be taking the same view of CU, seeing its hand leashed in ways that do not
flow inexorably from the decision. Clearly, the current federal
environment gives greater comfort to a non-candidate, non-political committee
spender than it would otherwise have -- although exactly how much still
remains to be seen. Things are not playing out the same way in
all of the states, as Jim Bopp's various clients can (and, I assume, will)
testify.
=B.
Brian G.
Svoboda
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The
news reports I have seen suggest two , more subtle ways that CU may be
increasing corporate spending. The first is spending by corporations
that pre-CU avoided any election-related spending because it was not cost
effective for it to hire sophisticated election lawyers to help them craft
ads that avoided express advocacy and its functional equivalent.
Having been on conference calls with up to six lawyers parsing through
election-related ads, I can certainly understand the pre-CU reluctance to
start that meter running. After CU, however, such corporations now
only have to worry about complying with the disclosure requirements.
The
second is targeted spending, where a corporation focuses its resources on a
race it has identified as critical for its interests. Think Capteron,
except with Massey buying the independent expenditure ads, not its
CEO.
From:
election-law-bounces@mailman.lls.edu
[mailto:election-law-bounces@mailman.lls.edu] On Behalf Of
JBoppjr@aol.com
Sent: Tuesday, September 28, 2010 7:57
PM
To: lehto.paul@gmail.com
Cc:
election-law@mailman.lls.edu
Subject: Re: [EL] Electionlawblog
news and commentary 9/28/10
Geez,
I am thrilled by the result in CU and have hardly minimized its impact,
particularly on the law, but what I was talking about was the practical
effect and I was trying to be candid. I said an only modest
effect on business corps, more of an impact on advocacy corporation, like
CU, but the total net effect is now indeterminate. I only know what I
currently know. Jim
Bopp
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