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.

Some weeks ago, a number of individuals with different professional backgrounds and perspectives on campaign finance came together to urge the Federal Election Commission to take certain initiatives to improve the enforcement of the law.  (I was one of them.)  In a period of difficult, highly contested constitutional and legal questions, the FEC is in a difficult position, often charged with the perceived “sins” of others and itself divided  over regulatory direction.

But in this turbulent period, a key step for the agency is to define the available paths toward clear law, accessible and regularly updated guidance to those subject to the Act, and strengthened compliance and bipartisan enforcement. The signatories to the letter urged that the Commission consider revisions to “advance core regulatory purposes and policies in the public interest, such as the more effective implementation of well-established disclosure requirements.”

Today, in a further step, the same group has filed a Petition for Rulemaking, calling on the Commission to implement the statutory mandate to expand the Administrative Fines Program, address ambiguities, omissions and uncertainties in its guidance and reporting forms, and generally improve the enforcement of the disclosure provisions.  Once again, the signatories are unified in their view that this is a critically important function for the FEC to play, and that respect for the law and the prospects for successful compliance depend on sound administration of core statutory requirements.

Larry Lessig’s PAC has run into regulatory difficulties, apparently botching compliance with disclaimer requirements, and the Center for Competitive Politics decided to make an example of him by filing a complaint with the FEC. Example of what?  That those advocating for regulated politics should sample the fare they are urging on others and experience the same indigestion. In the Wall Street Journal, Scott Blackburn of the CCP has suggested that the moral of the tale was the need for more “sensible” campaign finance laws.

When skeptics of compelled disclosure warn about the dangers of reprisal and harassment, the answer most often is that the Supreme Court has already addressed this contingency. Groups that can make a showing that they are uniquely vulnerable to harassment can apply for an exception. In this way the conversation drifts quickly to NAACP v. Alabama.

The skeptics, however, remain unpersuaded, and in a recent blog posting, Lyle Denniston points out that changes in politics may account for their discomfort. He refers specifically to the “deep polarization of the parties and the effect that has on coarsening the content of political expression.” He suggests that in this climate, the concern with donor privacy has broadened sufficiently that “privacy in political expression” now figures prominently in disclosure debates and requires a balance that the Supreme Court will be eventually called on to strike.

As the Denniston posting was published, a federal district court in Colorado entered an order in the latest phase of litigation over a state disclosure requirement modeled on the federal “electioneering communication” provision. This case serves as a good example of contemporary disclosure controversies, bringing out key disagreements over how disclosure laws should apply to smaller-scale issues speech.