OPINION:
Throughout this year’s presidential primary, Sen. Bernie Sanders made support for tougher campaign finance laws a cornerstone of his (now presumably concluding) campaign. His website railed against the “political campaign finance system” as “corrupt,” and “the disastrous Citizens United Supreme Court decision” as “hing[ing] on the absurd notion that money is speech, [and] corporations are people.”
Meanwhile, a Sanders supporter recently demonstrated that the current campaign finance laws are already so burdensome that even relatively sophisticated Americans cannot comply with them. Ironically, despite the resentment Sen. Sanders has unfairly stoked against the Citizens United decision, this corporate supporter “feeling the Bern” ran smack into multiple legal obstacles that prevent political participation by mom-and-pop corporations.
Evidently unbothered by “the absurd notion that money is speech,” Joyful Noise, an independent music label, recently used its corporate resources to raise money for Mr. Sanders by creating and distributing an audio track on its website entitled “Feel It In Your Guts.” To download the track, visitors had to first contribute to the Sanders campaign and then upload proof of the contribution.
According to the download page, this Byzantine process was required because “Joyful Noise is a company … and that means Bernie won’t accept a check from us. True story. So, we can’t merely sell you the release and pass the donation to Bernie.”
The Center for Competitive Politics has identified at least four ways in which Joyful Noise apparently violated the misguided and complex campaign finance laws:
First, Federal Election Commission (FEC) regulations generally prohibit corporations from using their “resources or facilities to engage in fundraising activities in connection with any federal election.” As Joyful Noise recognized, as a corporation it could not cut a check to the Sanders campaign. However, the company’s “in-kind support” is also barred under the law.
Ironically, the Citizens United decision that Mr. Sanders repudiates protects precisely this type of grass-roots political activity by Joyful Noise and all Americans. The ruling held that citizens who assemble in a corporate form — no matter how large or small — do not forfeit their constitutional right to speak out about candidates, as long as they do so independently of the candidate. From this, it necessarily follows that incorporated groups of citizens also have a First Amendment right to use their resources to independently raise money for those candidates. Unfortunately, the FEC’s regulations have yet to come around to such an enlightened view.
Second, FEC rules provide that the “republication, in whole or in part, of any form of campaign materials prepared by the candidate” is an illegal in-kind contribution by corporations. Under this rule, three FEC commissioners who agree with Mr. Sanders’ position on campaign finance laws consistently have determined that an entity’s use of excerpts of video created by a campaign is a “republication” violation. Thus, the FEC could easily conclude that Joyful Noise’s material, which consists entirely of excerpts of Sanders campaign speeches set to music, is also a republication violation.
Third, anyone making independent expenditures or soliciting contributions for candidates must include specific disclaimers on such materials, and also file reports for independent expenditures exceeding even $250. The disclaimer on Joyful Noise’s download page says: “Note: There is no donation minimum, but we reserve the right to cancel your order if we feel like you’re being an opportunistic [expletive]. Dig deep. Feel it in your guts.” Needless to say, this is not the FEC’s required disclaimer. It also does not appear that Joyful Noise intends to file any FEC reports.
Lastly, corporations generally may not make any expenditure “in cooperation, consultation or concert with” a federal candidate or his campaign. The Indianapolis Star reported that Joyful Noise consulted with the Sanders campaign, and that “[t]he Sanders campaign was quick to get on board and sent hours of usable recordings.” This apparent coordination is yet another possible violation.
Arguably, because Joyful Noise used its own website for the solicitation, some of these rules may not apply under the FEC’s “Internet activity exemption.” However, three FEC commissioners on the Sanders side of the campaign finance law spectrum have refused to apply this exemption to a nonprofit corporation’s YouTube videos. One of these commissioners said the internet exemption “simply does not make sense,” and called for a wholesale “re-examination” of the rule.
To be clear: The Center for Competitive Politics takes no position on any of the presidential candidates and fully supports their supporters’ exercise of First Amendment rights. We call attention to these apparent violations because they are a stark reminder of how Citizens United was not a case about the “one percenters,” as politicians like Sen. Sanders would have us believe. Rather, the decision was about vindicating the right of all Americans to freely support their preferred candidates. As Joyful Noise would say, “True story.”
• Eric Wang is a political law attorney and senior fellow at the Center for Competitive Politics. He formerly was counsel to a commissioner at the Federal Election Commission.
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