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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