Yesterday the Federal Election Commission adopted rules to implement the Supreme Court’s decision in Citizens United v. FEC. The rules will not take effect before the November 4 election, although they largely codify practices that have been understood to be lawful since Citizens United came down nearly five years ago.
Here—briefly—is what the FEC did:
- The FEC rules will now expressly permit corporations and labor unions to make independent expenditures and electioneering communications—as Citizens United held that they must.
- The FEC concluded that “the Court’s holding applies to all non-coordinated corporate and labor organization expenditures, regardless of whether they fall into the narrower statutory definition of an ‘independent expenditure.’” Yet the FEC left standing a wide range of restrictions on corporate fundraising activity that do not necessarily involve coordination with parties. These restrictions are a potential source of future controversy.
- The FEC adopted its first explicit acknowledgement of so-called “Super PACs” in the regulations: it added a note to the rules, making clear that corporations and unions may make unlimited contributions to independent expenditure-only PACs and to the non-contribution accounts of “Carey” PACs. The FEC said it will undertake a separate rulemaking on Super PACs, but did not say when.
- The FEC left standing the existing disclosure rules for corporate and union independent expenditures and electioneering communications. For electioneering communications, it left a gap between the treatment of corporations and unions, which must only disclose donations “made for the purpose of furthering electioneering communications”—and other unincorporated entities, which must disclose a far wider range of donors. This is an ironic application of the Court’s holding in Citizens United, which was “that the First Amendment does not allow political speech restrictions based on a speaker’s corporate identity.”
- The new rules allow a corporation or union to establish a segregated bank account for making electioneering communications—although the narrowness of the general disclosure requirements, as discussed above, provides a compelling reason not to do that.
- The new rules draw a confusing and potentially controversial distinction between partisan and non-partisan voter drives targeted to a corporation or union’s “restricted class.” It allowed corporations and unions to withhold information and help based on support for or opposition to a particular candidate or party. But in that case, the voter drive would not qualify as “nonpartisan,” would be treated as an expenditure, and apparently may not be coordinated with candidates or parties.