Rep. Grayson’s legislative move to preempt Citizens United

Rep. Grayson introduced a number of bills in anticipation of Citizens United.  (The opinion might be announced as soon as next Wednesday.)  H.R. 4431 is the “Business Should Mind its Own Business Act.”

(a) In General- In the case of a corporation, there is hereby imposed a tax equal to 500 percent of the aggregate of the following amounts:

    `(1) The amount of contributions (as defined in section 301 of the Federal Election Campaign Act of 1971) made during the taxable year.
    `(2) The amount paid for an electioneering communication described in section 304(f)(3) of such Act.

Citizens United hasn’t been reported to involve direct corporate contributions to candidates, to put it politely; but when I read this I was reminded of 26 U.S.C. 527(j) and 527 organizations choosing to shield the identity of a donor.

The penalty is 35% of the total amount of contributions and expenditures to which a failure relates.

The 11th Circuit addressed the constitutionality of 527(j), explaining

Any political organization uncomfortable with the disclosure of expenditures or contributions may simply decline to register under section 527(i) and avoid these requirements altogether. The fact that the organization might then engage in somewhat less speech because of stricter financial constraints does not create a constitutionally mandated right to the tax subsidy. Similarly, the fact that some self-declared section 527 organizations may later choose to withhold disclosure and, as a result, may pay more in taxes than they would have paid without tax-exempt status does not make the initial decision to register under section 527 any less voluntary. Rather, we consider the statutory scheme as a whole and treat the consequences of violating the conditions of the subsidy as part of the tax framework.

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