Has the Supreme Court created an environment “pregnant with possibility of corruption?”  The Washington Post Editorial Board makes this case, building it around the rise of super PACs, and it locates the problem in the Supreme Court’s reasoning in Citizens United.  The argument does not clarify especially well the choices ahead in campaign finances, or the role of Citizens United in shaping them, or the means of grappling with bona fide corruption.  The Post’s miscue is the insistence on keeping campaign finance reform tied tightly to the corruption debate—or, more accurately, tied up with it, with nowhere to go.

Lawrence Tribe and Floyd Abrams have each spoken or written recently about Citizens United, and their views, while not the same, suggest a continuing movement toward appraisals that are balanced between full embrace and outright condemnation. And, as Professor Tribe suggests, a measured judgment of the Court’ performance in that case helps with the re-orientation of the campaign finance debate that is long overdue.

Just before the turn of the year, the Tenth Circuit decided that Citizens United, the organization, was entitled to the Colorado campaign finance law’s press exemption and so was not required to file public financial reports when producing and distributing a political documentary. Citizens United v. Gessler, 773 F.3d 200 (10th Cir. 2014). Colorado has construed the exemption broadly to apply to online publications and bloggers as well as to print and traditional media outlets.  But the State urged that the Court distinguish between entities about which the voters know or could easily learn something, and those hiding behind empty names lacking cue or content and having no extended operating history that listeners or views could consult for useful information.  The latter organizations—the “Citizens for a Better America” or “People for Justice” —are engaged in what it termed called “drop-in advocacy” during election seasons.

The Court, impressed with the distinction, still rejected its application to Citizens United. CU was well known; there was ample information available to anyone caring to seek it out, and the informational interest of voters was adequately protected. On its reading of Citizens United, the Court emphasized the interest supporting disclosure as the voters’ informational interest, not the deterrence of “corruption” or its appearance.

This raises the question: for purposes of the disclosure requirements based on the voter’s informational interest, is it possible to distinguish between an ongoing enterprise of known purpose and the shadowy “drop-in” advocacy group which is often here today and gone tomorrow?  And if it is, is that interest served primarily by disclosure of donors, or by other information about its organization and purposes?

Rick Hasen has written a crisp reply to the posting here and defends his position that it is false—simply false—to say that Citizens United allows for unlimited foreign corporate spending in federal elections.   It is illegal, he argues, for foreign nationals to influence elections, and CU did not change that. In fact, in a later decision, the Court expressly upheld the ban on foreign national contributions and expenditures.

Just as Rick insists that the position taken here won’t “fly,” it is hard to see how his response really gets very far down the runway—particularly considering what he has astutely said before on much the same question of how to judge the Court’s performance in campaign finance cases.

Rick Hasen has twice posted in the last several days a sharp criticism of the President’s fifth anniversary statement about Citizens United. He objects to the assertion that Citizens United opened up the avenue for unlimited foreign corporate spending in the United States. Rick says this is false, citing in support of that position PolitFact’s prior rating of that statement as “mostly false,” which that fact-checking enterprise arrived at after originally rating the statement as “barely true.” And a review of PolitiFact’s analysis reveals that a statement merits criticism as “mostly false” if it is an ”overstatement.”

Readers will probably think very little is at stake in tracing the chain of reasoning from false to mostly false to barely true, or somewhat true, or whatever, and trying to sort out what fine differences distinguish one of these ratings from the others. But because Rick stakes out a strong position—that the statement is simply “false” —he should have a high degree of confidence that it is a black-and-white matter subject to no disagreement.