[EL] Will foreigners decide the 2012 election?

[Smith, Brad]

I like the sign in the photo that the New Republic chose to accompany Rick's op-ed. "Dollars are not citizens" it says. Of course, votes are not citizens, either, nor, for that matter, are opinions. Perhaps they should all be prohibited in elections.



Brad Smith



________________________________
From: law-election-bounces at department-lists.uci.edu [law-election-bounces at department-lists.uci.edu] on behalf of Joe La Rue [joseph.e.larue at gmail.com]
Sent: Tuesday, December 06, 2011 8:45 AM
To: law-election at uci.edu
Subject: [EL] Will foreigners decide the 2012 election?

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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