What, you thought Citizens United was the end of it? We are just getting started.
So back in August 2009 the campaign of Ohio's Rep. Jean Schmidt sent a complaint to the Federal Election Commission. (Please, I beg you, leave aside the politics and focus on what's to follow.) The complaint asserted that the Armenian National Committee of America ("ANCA," a 501(c)(4) corporation) had, through an email blast to its members and in an op-ed in its Armenian Weekly, disseminated a major fundraising pitch for an ActBlue page supporting Schmidt's opponent, David Krikorian, regarding the whole Turkey/Armenia historical conflict which also isn't the issue here.
The issue is that ANCA is a corporation, and whatever you may think about corporate political speech on behalf of candidates either pre- or post-Citizens United (the complaint was filed before the decision was announced), one would assume that corporations aren't supposed to get into the fundraising business itself.
And, indeed, if you'll take a look at 11 CFR 114.2(f), you'll see why political law attorneys like me are called upon by corporate clients regularly to tell them just what "facilitation" is all about:
Facilitating the making of contributions. (1) Corporations and labor organizations (including officers, directors or other representatives acting as agents of corporations and labor organizations) are prohibited from facilitating the making of contributions to candidates or political committees, other than to the separate segregated funds of the corporations and labor organizations. Facilitation means using corporate or labor organization resources or facilities to engage in fundraising activities in connection with any federal election...
And that's just scratching the surface of what the regulations discuss -- use of a company's physical spaces, its personnel, its mailing lists, etc. But this should be a straightforward complaint, right? While Krikorkian insisted that he didn't coordinate any of this with ANCA, the FEC General Counsel's Office thought it was a clear violation of the solicitation rules by ANCA in the email blast, while approving the newsletter piece as protected under the press exemption and taking no action against Krikorian. No different, really, than 2009's VIDA Fitness case, in which a DC-area health club and hair salon were fined for emailing their customers to invite them to an Obama fundraiser hosted at their facilities.
But the General Counsel doesn't have the final word. That would be the six commissioners of the FEC, three Democrats and three Republicans at all times, with the consent of four needed to get anything done. Yet again, the three Republican commissioners saw a political regulation they didn't like, and tossed it.
Their statement of reasons is here, and what the Republican Commissioners do is take the Citizens United logic just one step further down the trail. They argue that if Citizens United means that you can't have laws preventing corporations from speaking independently about political candidates because independent speech doesn't corrupt candidates, well, what's a fundraising appeal if not a particular type of independent speech on behalf of a candidate? Moreover, if it's okay for a corporation-that's-media to run such appeals, then why not corporations which aren't media?
Without question, a solicitation for contributions to a federal candidate is as much "political speech" as a communication calling on voters to cast their ballots for a particular candidate. Simply because the subject of the former communication is a solicitation, it does not follow that we are granted the authority to regulate it--"[p]remised on mistrust of governmental power, the First Amendment stands against attempt to disfavor certain subjects or viewpoints." Therefore, because a solicitation done independently of a federal candidate or political party committee is political speech, it is as deserving of the full panoply of constitutional protections that is afforded to independent communications.
Consequentiy, post-Citizens' United, if a corporation may ask people to vote for a federal candidate in an independent communication, then surely it may also make an independent communication asking people to make a contribution to that candidate. In other words, if a corporation enjoys the constitutional right to run an independent ad saying "Vote for Smith," we fail to see how less constitutional protection could be afforded an independent ad saying "Contribute to Smith."
So everyone walks. What does this mean? Well, it might be less problematic for a group like People for the American Way, the ACLU or the NRA to not have to fuss as much about distinctions between its (c)(4) entity and a separate PAC and just fundraise off its general membership list, but what about for-profit corporations? Imagine Walmart.com's checkout page having a box listing your local "pro-freedom congressional candidates" with an option to give each of them a dollar. Imagine Amazon leveraging its massive customer list for similar purposes. The possibilities are ... well, you tell me.