No, Commissioner Weintraub, the FEC Can't Circumvent Citizens United

In an opinion piece published yesterday in The New York Times, Ellen Weintraub, a member of the Federal Election Commission, suggests a way to "blunt the impact" of Citizens United v. FEC. There are reasons to question the propriety of a federal officer attempting to "blunt" a First Amendment ruling against her agency, and I am unaware of another federal entity whose commissioners routinely take to the pages of major newspapers to decry binding Supreme Court precedent. But no matter how attractive you find her proposed "zero-tolerance standard," under which any corporation with even a single foreign shareholder could be barred from any political activity, her proposal relies on a number of fatal legal errors.

Commissioner Weintraub makes a three-step argument. First, she asserts that the Supreme Court "has never held that corporations have any of the political rights of citizens." Consequently, in Citizens United, the Court "can only have meant" to protect the First Amendment liberties of "associations of American citizens who are allowed to contribute." Second, she notes that foreign nationals and U.S. government contractors are "forbidden by law from directly or indirectly making political contributions or financing certain election-related advertisements known as independent expenditures and electioneering communications." Finally, acknowledging that "many American corporations have shareholders who are foreigners or government contractors," she claims that the law now requires her new "zero-tolerance standard," which would bar any political activity by those corporations.

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