Hasen on Bauer on Hasen on President Obama on #SCOTUS on Foreign Campaign Spending

Is the following statement by President Obama false?

 

 “But five years ago, a Supreme Court ruling [Citizens United] allowed big companies – including foreign corporations – to spend unlimited amounts of money to influence our elections.”

I argued that it is false:

 

In fact, five years ago, in Citizens United the Court expressly refused to rule on whether a ban on foreign money in elections (individual, corporate, or otherwise) could be banned in elections. It left the foreign spending ban in place. So Citizens United did not allow “foreign corporations” to “spend unlimited amounts of money to influence our elections.”

 

Bob Bauer’s response urges that we use the reform community’s playbook (stretch corruption to mean “undue influence,” look for “loopholes” and what is “really going on”) to reach the conclusion that the statement is not false.  Bob’s reasoning in brief: Before Citizens United no corporations could spend money on certain election related activities. After Citizens Uniteddomestic corporations can, including U.S. subsidiaries of foreign corporations. Bob acknowledges that federal law bars foreign controllers from telling the U.S. subsidiaries if and how to participate in U.S. elections, but we all know what is, or could be, going on.

I’m sorry. I love Bob, but this reasoning will not fly. The president said that Citizens united “allowed . .. foreign corporations . . . to spend unlimited amounts of money to influence our elections.” The Court did no such thing.  If the court permitted a “loophole” to open in which foreign corporations could illegally direct their U.S. subsidies to do this activity, that is not the same as the Court allowing foreign corporations to spend unlimited sums in elections. The Court acted with the knowledge that this is illegal—and Bob’s resort to the reform community’s loose argument playbook is quite ironic (given where Bob usually is on these issues.)

Look, foreign money could well be coming into our elections, illegally, especially through 501(c) groups which do not disclose publicly their donors.  But that could have been happening before Citizens United too. The fix for this must come from Congress or the IRS or the FEC (though I have no hope that it will).

Let’s blame the Supreme Court for its horrible jurisprudence in Citizens United without falsely accusing the Court of doing something it did not do.

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