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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.

Originally posted to Daily Kos on Mon Feb 07, 2011 at 07:30 AM PST.

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Comment Preferences

  •  Politicians (5+ / 0-)

    Politicians should just be like NASCAR drivers, they should just have all their sponsors patches sewn on their suits so we can all just see them for what they are.

    Nothing but corporate piss boys.

    Bad is never good until worse happens

    by dark daze on Mon Feb 07, 2011 at 07:32:34 AM PST

  •  Corporations are going to be hesitant (1+ / 0-)
    Recommended by:
    Adam B

    for the most part to use their customer lists for political purposes, so the Wal-Mart and Amazon examples are unlikely.

  •  They are counting on SCOTUS. (0+ / 0-)
  •  BREAKING: Jane Harmon Quits (3+ / 0-)

    Jane Harmon will step down from her post, the formal announcement to come down Tuesday.

    I'm not afraid of guns! I'm afraid of the people that obsess over owning them.

    by Detroit Mark on Mon Feb 07, 2011 at 07:38:34 AM PST

    •  Harman to leave Congress, join think tank (3+ / 0-)
      Recommended by:
      Detroit Mark, Matt Z, yella dawg

      HERE

      From NBC's Andrea Mitchell
      NBC News has learned that Rep. Jane Harman, D-Calif., is expected to announce tomorrow that she will quit Congress to become the president and CEO of the Woodrow Wilson Center in Washington.

      Harman will succeed the current leader, former Rep. Lee Hamilton, who has led the bipartisan think tank for 12 years.


      In 21st Century America, guns are still considered safer than marijuana.

      by xxdr zombiexx on Mon Feb 07, 2011 at 07:44:14 AM PST

      [ Parent ]

  •  The Republican War against Commoners continues. (9+ / 0-)

    Whatever they can do to undercut the real person, that's what they are doing.

    God, how they hate you and me.

    I can't believe some people still want to treat them with respect and decorum.

    I dream of their defeat and the lamentations of their women.


    In 21st Century America, guns are still considered safer than marijuana.

    by xxdr zombiexx on Mon Feb 07, 2011 at 07:39:11 AM PST

  •  The sovereign citizens have it backwards (7+ / 0-)

    To gain power in these United States, you need to be a corporation.

    In theory, there is no difference between theory and practice; but in practice, there always is a difference. - Yogi Berra

    by blue aardvark on Mon Feb 07, 2011 at 07:39:48 AM PST

  •  Multinational corporations have already bought (2+ / 0-)
    Recommended by:
    Goldfish, jm214

    and sold America so it's a small step to start selling Credit Default Swaps and derivatives betting against the viability of the USA.

    I don't dislike all conservatives... mainly just the ones that vote Republican.

    by OHdog on Mon Feb 07, 2011 at 07:41:25 AM PST

  •  The FEC has always been unable to make the right (3+ / 0-)
    Recommended by:
    Adam B, Goldfish, brein

    decisions because of the three and three makeup of its board. It is only capable of picking the the odd noncontroversial, low-hanging fruit.

    It would be much more effective if there were a nonpartisan (or bipartisan) seventh member of the panel, but such a change will never come about for precisely that reason.

    It is an old strategy of tyrants to delude their victims into fighting their battles for them. --FDR

    by Rube Goldberg on Mon Feb 07, 2011 at 07:43:40 AM PST

  •  Most corporations are chartered by (1+ / 0-)
    Recommended by:
    Goldfish

    states, which have the power to approve the articles of incorporation (similar to a constitution) and define the activities the private corporations may engage in, just as they do the public corporations (towns, counties, cities) within their jurisdiction.

    Presumably, campaign finance laws and regulations aim to direct the behavior of public officials and potential public officials.  Trying to accomplish that objective by putting prohibitions on individual citizens and private corporations is inappropriate.  You don't keep a dog from biting by muzzling its owner.  Trying to affect one entity by targeting another is a prescription for failure.  Only people who actually care about ethics and fair play are going to comply with the intent.  Everyone else will just circumvent it and irk the ethical people besides.

    If you want to limit campaign expenditures by candidates for public office, restrict them to accepting donations only from individuals who are also qualified to vote for their election.

    Anyway, the problem isn't in the electoral phase of the process; it's in the initial selection of candidates, either by themselves or special interest groups (chambers of commerce).  If we've got corrupt candidates, we're going to have corrupt public officials.  

    How can we tell they're corrupt?  Well, there are few signals.

    1. self-dealing
    1. reliance on threats to extort support
    1. poor resource management
    1. poor work habits
    1. verbal obfuscation

    The conservative mind relies mainly on what is plain to see.

    by hannah on Mon Feb 07, 2011 at 07:48:46 AM PST

  •  Logical extension of Citizen's United (3+ / 0-)
    Recommended by:
    NCJim, Goldfish, brein

    until that is fixed there will be no limits on corporations

  •  Sometimes I think... (3+ / 0-)
    Recommended by:
    dark daze, Rube Goldberg, jm214

    ... that this is the last generation who will know the value of freedom of expression.

    And we don't even need any sort of government censorship to get there; no official newspeak.  The corporations fill enough of the nitches to do that all on their own, almost blindly.  While I'm sure that certain messages are important to owners, the whole profit thing is driving it in the end, and most folks are happy with this.

    We've lost ballance between what the role of government and other power structures are, and this is definitely one of the effects of that.

    The inadequate is the enemy of the necessary.

    by JRandomPoster on Mon Feb 07, 2011 at 07:50:48 AM PST

    •  It is part of our third world trend. (2+ / 0-)
      Recommended by:
      brein, JRandomPoster

      If you look at the milder dictatorships, the ones where only a few people "disappeared" for example, the actual hard censorship was veiled. The real trick was that the wealthy in the country generally backed the "strongman" and it took wealth to publish and broadcast. "Wealth" agreed on the party line in general, there were "other opinions" all within that "mainstream of support" and thus a fiction of "freedom" could be maintained.

      We are not there yet. We are getting too damned close for comfort.

      The only foes that threaten America are the enemies at home, and those are ignorance, superstition, and incompetence. [Elbert Hubbard]

      by pelagicray on Mon Feb 07, 2011 at 09:10:55 AM PST

      [ Parent ]

  •  The possibilities are ... science fiction ... (1+ / 0-)
    Recommended by:
    La Gitane

    2001: wrong date, wrong future.

    Rollerball is a 1975 American dystopian fiction film directed by Norman Jewison from a screenplay by William Harrison ... In the film, the world of 2018 is a global corporate state, containing entities such as the Energy Corporation, a global energy monopoly based in Houston which deals with nominally-peer corporations controlling access to all transport, luxury, housing, communication, and food on a global basis ...

    ... Rollerball ... is a substitute for all current team sports and for warfare. While its ostensible purpose is entertainment, Mr. Bartholomew, a high-level executive of the Energy Corporation, describes it as a sport designed to show the futility of individual effort.

    Global corporate serfdom, here we come!

    The invasion of Iraq was a war crime, a crime against humanity, and a crime against civilization. Prosecute the crime.

    by Positronicus on Mon Feb 07, 2011 at 08:03:19 AM PST

  •  uh... like... no one saw this coming? (1+ / 0-)
    Recommended by:
    La Gitane

    (our wise men have said) Corporations are people too, y'know. Yet look how Corporations are so cruelly oppress'd. Oh, the humanity!

    Hath not a Corporation eyes, hands, organs,
    dimensions, senses, affections, passions; fed with
    the same food, hurt with the same weapons, subject
    to the same diseases, heal'd by the same means,
    warm'd and cool'd by the same winter and summer
    as a person is?

    If you prick them do they not bleed? And if you wrong them, shall they not revenge???

    And the villainy you teach them, they will execute,
    and it shall go hard but they will better the instruction.

    (my Apology to Wm Shakespeare)

  •  It's a long battle (0+ / 0-)

    Always has been.  

    We have win some, if you count victories in terms of decades and centuries rather than years.

    Nose to the ground and keep the long view.

    "There is nothing to be learned from history anymore. We're in science fiction now." -Allen Ginsberg

    by NCJan on Mon Feb 07, 2011 at 08:15:21 AM PST

  •  Correction (0+ / 0-)

    This story originally said "Mark Krikorian" instead of David.  Oops.  That's someone else.

  •  This will not end until we have Egypt-style riots (2+ / 0-)
    Recommended by:
    Goldfish, brein

    on the DC Mall, and Central Park, and Boston Commons, and...

    Damn, America is screwed.

    There are two political aisles: Center-Left and Center-Right. It's impossible to cross them both. Republicans know this and govern accordingly; Democrats don't.

    by Jimdotz on Mon Feb 07, 2011 at 08:20:46 AM PST

    •  I'm hoping (1+ / 0-)
      Recommended by:
      Jimdotz

      a large group of unemployed and/or foreclosed home owners and their allies converge on Wall-Street and refuse to leave until Congress passes comprehensive anti-corporate reforms.

      But sadly, too many of the people here ready to revolt are convinced that exact the opposite set of policies and priorities are to blame for their situation.

      The Angries are back

      by Goldfish on Mon Feb 07, 2011 at 02:10:27 PM PST

      [ Parent ]

  •  Had to laugh at this too (1+ / 0-)
    Recommended by:
    brein

    KingOneEye pointed out in a diary on the Obama/O'Reilly interview that a Wall Street Journal editorial said the president is ...

    "a determined man of the left whose goal is to redistribute much larger levels of income across society." Fittingly, the President laughed at the question.

    I'm sure he did. It's not just the Republicans at the FEC who are carrying water for the corporate state. How the WSJ can conclude Obama is a "man of the left" whose policies are redistributive is beyond me.

  •  I really don't care. (0+ / 0-)

    I don't believe in controls on political speech and I don't object to the Citizens United ruling.  Democrats need to go out there and say that corporate money makes Republicans corrupt...of course, Democrats can't say that while they're still on the take too.

    APSCU is the trade group of diploma mills that rip off students and the government.

    by Rich in PA on Mon Feb 07, 2011 at 08:28:10 AM PST

  •  Honestly (2+ / 0-)
    Recommended by:
    Goldfish, La Gitane

    I don't see how you could reasonably read CU any other way.

    Ok, so I read the polls.

    by andgarden on Mon Feb 07, 2011 at 08:33:27 AM PST

  •  Somewhat associated topic with references to (0+ / 0-)

    a story in today's Washington Post, "House GOP targets Obama regulations" may be of interest. Opening paragraphs:

    House Republicans are scrutinizing a wide array of existing and proposed Obama administration regulations in areas as diverse as the environment and Wall Street, and they are taking guidance from industry groups that say the rules threaten jobs.

    Responding to solicitations from Rep. Darrell Issa (R-Calif.), businesses have asked Congress to roll back or preempt more than 150 rules governing their industries, according to documents obtained by The Washington Post.

    One might sarcastically say the "regulations" requiring employers pay their employees is a real downer on "employment"! The actual list in the story's sidebar comes closer than many might suspect. That list includes a very interesting couple of regulations businesses do not like. Keep in mind that in principle the shareholders are the owners. That "ownership society" thing? Well being challenged are regulations:

    1. Give shareholders, the owners remember, a "non-binding say" on executive pay
    1. Make it easier for those shareholder owners to nominate board members
    1. Requiring disclosure of the pay gap between the CEO and typical worker

    So, in the TP/gop universe the "masters of the universe" employees are being given cover from actions of the actual owners who enjoy some very limited federal regulatory protection. It just goes to show the current corporate system is indeed a scam and a sham and any efforts to make it less so will be fought tooth and nail by a party that has completely sold out to neo-feudal barons.

    The only foes that threaten America are the enemies at home, and those are ignorance, superstition, and incompetence. [Elbert Hubbard]

    by pelagicray on Mon Feb 07, 2011 at 09:25:53 AM PST

  •  This is the classic double edged sword (0+ / 0-)

    Just let this pass and allow the more progressive groups acquire money from contributors as best they can. I believe the term facilitating is a gentler way of saying cooercing money out of members of an organization, corporation, or business. It happens all the time in local politics (I was raised in West Virginia and work in Western New York-Buffalo area). So if you like your job working for the Parks Commission, or the Sanitation Department or in the Mayor's office, pony up at re-election time. Just a suggestion (wink, wink with a not so subtle smirk).

    Can't suppress the human tendencies to lust for power in whatever arena.

    •  You really think... (0+ / 0-)

      Progressive groups can win in an all-out money war against Corporate American and their shock troops like the Chamber of Commerce? HAH!

      And that's leaving out the fact most of our progressive issues groups are deeply corrupted by cooperate influence already, and are actually working against our interests. The Sierra Club is basically a subsidy of big oil, and NARAL is more concerned with being part of the in-crowed on the Village cocktail circuit than it is in pushing back the forced birth movement.

      The "progressive" groups are our enemies, not our allies.

      The Angries are back

      by Goldfish on Mon Feb 07, 2011 at 02:08:22 PM PST

      [ Parent ]

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