Rick Hasen has twice posted in the last several days a sharp criticism of the President’s fifth anniversary statement about Citizens United. He objects to the assertion that Citizens United opened up the avenue for unlimited foreign corporate spending in the United States. Rick says this is false, citing in support of that position PolitFact’s prior rating of that statement as “mostly false,” which that fact-checking enterprise arrived at after originally rating the statement as “barely true.” And a review of PolitiFact’s analysis reveals that a statement merits criticism as “mostly false” if it is an ”overstatement.” Readers will probably think very little is at stake in tracing the chain of reasoning from false to mostly false to barely true, or somewhat true, or whatever, and trying to sort out what fine differences distinguish one of these ratings from the others. But because Rick stakes out a strong position—that the statement is simply “false” —he should have a high degree of confidence that it is a black-and-white matter subject to no disagreement.
It is striking how Rick’s analysis departs from much of what is typical of campaign finance reform argument. The standard critique of money-in-politics reminds time and again not to seize on technicalities but to assess the influence of money as it achieves it effects subtly and insidiously. We are counseled to appreciate how things “really work,” and to grasp the various avenues of circumvention—i.e. getting around rules— that invite money to become dominant in our political process. Corruption should not be construed too tightly: it is to be understood more broadly than merely a bribe. ”Undue influence” should be our concern, we are told, and if we do not find money purchasing official action, we should focus on whether it buys access or even goodwill, which is bad enough.
So what then of the statement that Citizens United invites foreign corporate influence? Rick is correct that the law seems to prohibit foreign corporations from spending to influence elections. And he rightly refers to the Supreme Court’s refusal just two years ago to invalidate that prohibition on constitutional grounds. So be believes that this is ally enough to dispense with the concern over foreign corporate political influence after Citizens United and to discredit the Presidential statement’s argument to the contrary.