FEC Commissioner Weintraub believes that she has hit upon a regulatory maneuver to stop publicly traded corporations from making independent expenditures, or unlimited contributions to independent expenditure committees. At a time when newspaper editorialists carry on with attacks on the Commission as “worse than useless,” the Commissioner seems determined to prod the FEC to face the major “money in politics” issues of the day. This is her theory: foreign nationals cannot make contributions or independent expenditures, which means that the FEC could establish that no corporation with foreign nationals as shareholders could engage in this political spending. The rule would not bring about this result outright: it would require a corporation to “certify” that it was not making contributions or independent expenditures with these funds. As a practical matter, corporations with foreign national shareholders could not risk making the certification and would forgo this political spending. The Commissioner plans to direct lawyers to produce proposals that she and her colleagues can consider in a future rulemaking.
This is an interesting proposal, but it is generally appreciated that a Commission unable to agree on matters of lesser moment will not find a majority in favor of this one. But even beyond that, the proposal is vulnerable to questions about its viability as a regulatory measure.
There is first the question of the broader constitutional theory that Commissioner Weintraub is staking out, which is, effectively, that the FEC can act in this fashion because a corporation has no free-speech rights separate from the rights enjoyed by its “association’ members. Allen Dickerson has already responded to this point. He argues that the Supreme Court rejected this position some time ago, and it is indeed notable that Justice Byron White, who led the way in voicing these concerns in Bellotti v. First National Bank of Boston, wrote the dissent.
Another set of issues raised by the Weintraub proposal is more technical, and these emerge from a close reading of the Motion to launch the rulemaking that she intends to put before the Commission.
Full Article: One FEC Commissioner’s Answer to Citizens United –.