On January 21, 2010, the Supreme Court decided the landmark case of Citizens United v. Federal Election Commission. It restored the First Amendment protection of political speech. It also inspired the scorn of incumbent Democrat politicians.
Since the decision was released, we’ve seen Democrats including President Barack Obama, Senator Charles Schumer, and former Senator Russ Feingold scream that the sky is falling. Obama went so far as to attack the decision and the Supreme Court in his State of the Union address.
We’ve also seen one federal election cycle come and go. The world has not come to an end. Corporations have not stolen our democracy. Americans were free to hear a robust debate over ideas and ideals and were free to make their own choices. On Election Day they did — Republicans picked up 63 seats in the House of Representatives and six seats in the Senate.
The American people were the big winners, but who was on the losing end? Incumbent politicians, including Senator Russ Feingold, who sought to limit speech and limit debate. They sought to control what messages and viewpoints the voters could hear, and sought unfairly and unconstitutionally to limit speech. It was these incumbents who were voted out by an empowered public. When armed with increased information, the voters made informed decisions.
What we haven’t seen, until the eve of the decision’s anniversary, was an effort by the FEC to enact regulations to respond to Citizens United. One year has come and gone, and only now has the FEC publicly released any draft regulations to respond to the decision.
One year is an eternity. Many entities that sought to engage in political speech were left in limbo, not knowing what rules would ultimately apply. The FEC had issued interim guidance stating that it would not enforce the now unconstitutional provisions, but the lack of a definitive rulemaking likely caused many potential speakers to steer clear of the national debate this cycle.
Having worked in a federal agency and having drafted rules and regulations, I can attest to the fact that rulemaking takes time. That being said, reacting to a Supreme Court decision restoring a fundamental right ought to be straightforward. One year seems a bit excessive to me.
Yesterday the FEC released two draft rulemaking proposals. They could not however reach an agreement on how to proceed. The Draft Notice of Proposed Rulemaking Draft A (“Draft A”) proposes some needed changes to conform FEC regulations to the Citizens United decision. Unfortunately, Draft A also seizes upon the Citizens United decision as an excuse to create more burdensome reporting and disclosure requirements.
Cloaked under the banner of transparency, Draft A seeks to promulgate through regulation many provisions of the DISCLOSE Act that failed to pass the Congress. Among other things, Draft A proposes onerous reporting requirements for organizations and entities that do not conduct their political activity through segregated funds — this discriminatory treatment was a key provision of the DISCLOSE Act. It also contemplates doing away with the FEC’s current disclosure practices in favor of broader and more burdensome disclosure of funding sources. Draft A also proposes to enact through regulation the provisions of the DISCLOSE Act that applied to “foreign nationals.” These provisions were overbroad as drafted by Congress, for example Verizon Wireless would be considered a foreign national; they are still overbroad when proposed by the FEC. Congress failed to enact these provisions. I fear the day that a federal agency like the FEC would attempt to do through regulation that which Congress failed to do through legislation.
The Draft Notice of Proposed Rulemaking Draft B (“Draft B”) takes a narrower and more appropriate approach. It only suggests those changes that are necessary to conform the FEC regulations to the Citizens United decision. Many of these proposals were included in Draft A. Where the two drafts find agreement, there is hope for some rational regulations. The purpose of Draft B is clear: it is meant to rid the books of regulations that were invalidated by Citizens United. Draft A serves as one last attempt to enact the DISCLOSE Act, not through legislation, but through regulation.
Hopefully the commissioners can find some agreement and craft a regulatory proposal that is narrowly tailored to the issues raised by the Citizens United decision. After all, these regulations will impact how Americans exercise their right to political speech.
While a narrow rulemaking clearly setting forth how the FEC will enforce the election laws post-Citizens United would be preferable, if the commissioners cannot come to a reasonable agreement, no regulation is better than bad regulation. Citizens United has invalidated portions of the current law and regulations. For the FEC to announce, as it has done previously, that it will not enforce these unconstitutional provisions would allow political speech to continue, as it did in the 2010 election cycle.
There is a need for clear guidance on how the FEC will implement and enforce campaign finance laws in the wake of Citizens United. However, the regulatory process should not take the place of the legislative process. Should portions of Draft A be adopted, expanding reporting and disclosure requirements, the FEC will have usurped the domain of the legislature. On the anniversary of Citizens United, which restored the fundamental right to political speech, it is a travesty to see the FEC attempt to evade its constitutional limitations in this manner.
Chris Berg is an attorney in Washington, DC. He has provided advice to organizations including the Republican National Lawyers Association and the Young Republican National Federation. He previously served as a political appointee to the Department of Labor’s Office of Labor-Management Standards. He currently serves as Assistant General Counsel to Citizens United.