Subject: Re: [EL] Senator Feingold
From: "Pildes, Rick" <pildesr@exchange.law.nyu.edu>
Date: 11/2/2010, 3:34 PM
To: "election-law@mailman.lls.edu" <election-law@mailman.lls.edu>

Sen. Feingold's statement that $2 million has been spent against him that would not have been legal to spend but for the Citizens United decision raises a more general question:  how does Sen. Feingold know this is corporate money funding these ads?  I assume what Sen. Feingold is doing here is treating all spending by non-party groups as if this was spending by corporate entitties that would have been banned before Citizens United.  If these ads have been run by the Chamber of Commerce, he would be right, since their donors are all corporate entitites -- and assuming all the ads he's referring to are the kind of electioneering ads that would have been off limits to general corporate treasury funding before CU.  But if these ads have been run by virtually all of the other independent groups other than the Chamber, we do not know the source of the contributions.  That, of course, has been a major source of complaint.  In addition, some of the news stories that have uncovered some of the major donors to these groups report the donors to be wealthy individuals, such as Perry in Texas, the Koch brothers, and other Texans.  But all of that money could have been contributed and spent in exactly the same way before Citizens United.  I've seen a lot of media coverage of independent group spending in this election cycle that similarly seems to treat all outside group spending as spending that would have been prohibited before Citizens United.  This is a mistake, though it's been repeated so often as to be conventional wisdom.  We simply aren't in a position to know at this point, without full disclosure, how much of this money is flowing in this time around as a result of CU -- other than the clear corporate money, as with the Chamber, or with the union spending on electioneering ads. 

 

Richard H. Pildes

Sudler Family Professor of Constitutional Law

Co-Director, NYU Center on Law and Security

NYU School of Law

40 Washington Sq. So.  NYC, NY 10012

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