[EL] Will foreigners decide the 2012 election?

[Joe La Rue]

Regarding Rick's question,
“Will Foreigners Decide the 2012 Election? The Extreme Unintended
Consequences of Citizens United.” <http://electionlawblog.org/?p=26137>FIRST,
isn't it important that we remember that elections are decided by the
people who show up and vote? No foreigner can do that under the law.
Neither can a corporation or labor union, for that matter. Allowing
corporations, labor unions, and even foreigners to speak about candidates
and urge voters to support this one and oppose that one is not the same as
allowing them to vote for candidates. Allowing them to so speak should not
be construed as "deciding" an election. They are merely urging a particular
result. It has always been "We the People" who decide elections, not labor
unions, corporations, or foreigners.

SECOND, Rick asserts that *Citizens United *is a flawed decision. He and I
obviously disagree -- we've been on opposite sides of this issue both here
on the List Serve and also in court. But I would point out that whether or
not *Citizens United* is flawed is dependent upon the presupposition from
which one starts. If one starts from the presupposition that labor union
and corporate money should not be spent for campaign advertisements, then
yes: it is a flawed decision. If, however, one starts from the proposition
that the First Amendment protects *speech*, then *Citizens United *is a
perfectly logical extension of earlier case law, and a vindication of First
Amendment freedoms. For, unquestionably, independent expenditures are
speech. If the First Amendment protects speech, it must also protect the
speech of the big, bad, evil labor unions (you thought I was going to say,
"corporations," didn't you?).

FINALLY, why are some so terrified that foreigners will engage in political
speech and urge voters to elect this candidate and not that one? Again,
it's We the People who vote for candidates. We get to decide who gets
elected. That said, I agree with Rick that, conceptually, it feels wrong to
have foreigners urging a result in our elections. Yet does the First
Amendment allow any other result? If the Amendment protects *speech* (and,
it does), can we really say that it should not protect the speech of
foreigners? And if it doesn't protect foreigners' *political* speech,
should it protect their *commercial* speech? After all, commercial speech
receives less First Amendment protection than political speech. Should we
be able to enact laws that, say, ban commercial advertisements paid for by
foreign car companies? Or could we criminalize foreigners from protesting
our government, taking to the streets and waiving foreign flags?

While I personally might like that result, the First Amendment will not
tolerate it. Why? Because the First Amendment protects *speech*. It does
not protect just my speech, and the speech that I like. It protects even
speech that I don't like. That means that foreign flags can be waived by
foreigners in rallies against our government in American streets. It means
that foreign companies can advertise their products on American t.v. And it
means that foreigners should be able to spend money to create speech urging
particular results in elections. I may not like those results, but that's
the way the First Amendment works. If I want it to protect *my *speech, I
better make sure it protects everyone's -- even those people that I would
rather be silent.

Joe
___________________
Joseph E. La Rue, Esq.

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