High Court at a Crossroads
“Nonpartisans” are trying to reverse Citizens United one investigation at a time.


Stephen M. Hoersting

Groups not “under the control of a candidate” are protected because they pose no threat of quid pro quo corruption. The “major purpose” test is also supposed to be a kind of shield for noncorrupting speakers. But “reformers” are now deploying “major purpose” tests to silence speakers, not protect them.

Since Citizens United, every organization has the right to use unlimited and unrestricted funds to make “independent expenditures” and independent “electioneering communications” (ads that mention candidates over broadcast, cable, or satellite within 60 days of a general election). The organization must disclose donors for those independent expenditures under section 434(c) of the Federal Election Campaign Act and report electioneering communications under section 434(f), regimes far less invasive than political-committee reporting under section 434(a). No one could have foreseen that groups running and reporting these ads under the Court’s protection would be hauled before the FEC to probe their “major purpose.”

This is the reason so many plaintiffs — from, to Real Truth About Abortion, to Free Speech — have asked the Court to review “political committee” standards in the light of longstanding precedent. They understand that alleging “political committee” status against an independent opponent is Political Kneecapping 101. After all, it was political-committee allegations that killed the independent Swift Boat Veterans for Truth and Americans Coming Together in the aftermath of the 2004 presidential election. And correcting the political-committee problem for independent groups was the impetus behind the Citizens United and cases of 2010.

Political Kneecapping 201, incidentally, is to charge a group and a candidate one hopes to defeat with “coordinating” their advertising, a charge that at least has the logical virtue of alleging quid pro quo corruption. But alleging “coordination” is a risky gambit because it invites a counter-investigation against a candidate one favors. So much safer to allege “political committee” status against an entire class of speakers your side believes it can win without — but that’s hardly the “major purpose” of the First Amendment.

The Supreme Court needs to recall that having a “major purpose” of campaign activity is neither a kind of corruption nor a proxy for corruption. The major-purpose test was an exercise in what jurisprudence calls “constitutional avoidance.” The Buckley Court avoided the following question, a question “reformers” are driving the Court to consider with their “major purpose” crusade, and a question pending in Free Speech: Can a group that poses no threat of corruption be compelled to disclose its every receipt and disbursement? Buckley suggests not. And the question is fundamental — especially since narrowly tailored reporting designed to meet the government’s “informational interest” is already written into law.

The good news is that the Supreme Court got essentially the same question right in FEC v. Massachusetts Citizens for Life. There the Court held that MCFL, a 501(c)(4), posed no threat of corruption; therefore, the government’s desire to force political-committee status on MCFL was unconstitutional. The government’s other interest, the interest in providing information to voters, was met by requiring MCFL to disclose donors only for those communications that expressly advocate the election or defeat of specific candidates (today, these would include disclosure for “electioneering communications”) but not to report its every receipt and disbursement as a political committee.

If the Court hears Free Speech, and answers the question as it did in MCFL, the investigatory lever is neutralized: Any gang gunning for groups like Crossroads will have to allege quid pro quo corruption by alleging “coordination” with candidates.

But if the Court fails to hear Free Speech, or hears it and allows political-committee investigations to go forward against noncorrupting groups that report fully the costs of their independent expenditures and electioneering communications, rest assured the investigations will continue until Citizens United shrinks, silence ensues, and the regulatory state can scarcely be seen as an instrument of We, the People.

— Stephen M. Hoersting was co-counsel to plaintiffs in v. FEC and is the author of a serial novel, Partisan.