[EL] Citizens United as precedent

Tue Dec 6 16:46:19 PST 2011

A question about the scope of a prohibition on foreign spending to influence US elections: Suppose a foreign national places an ad in a foreign magazine that is published outside the US and mailed to subscribers in the US. The ad urges readers to vote to re-elect President Obama. Would list members favor interception of all copies of that issue of the magazine to prevent them from being read in the United States? What about confiscation of copies of the magazine from the shelves of stores in the US? Would we try to prevent Americans from viewing such an ad on BBC Television (in the US via cable TV) that was paid for a British subject? (Is the proper term still “subject” rather than “citizen”?) Should we have an Internet firewall to intercept Internet ads from other countries? Would we want to arrest someone who paid for such an ad if the person then came to the US? I think these questions suggest that it would be difficult (or unwise) to try to prevent such expenditures outside the US. It makes sense that the focus of such regulation should be on expenditures in the US or expenditures by foreign nationals present in the US.

On the interest point: Isn’t there a compelling interest in self-government that entitles us to take steps to prevent excessive influence by foreigners on US elections? We might expel a foreign diplomat who tried to influence our elections, right? Independent expenditures by US persons (including combinations of US persons such as corporations with little or no foreign stock ownership) of course influence US elections; that’s the purpose of such expenditures, and it’s a perfectly legitimate purpose, unless you accept a leveling of the playing field rationale for limiting independent expenditures, which the Court has rejected. The analysis then focuses on notions of self-government, allowing Citizens United to be distinguished persuasively, in my view.

Mark S. Scarberry
Pepperdine Univ. School of Law
Malibu, CA 90263
(310)506-4667

From: law-election-bounces at department-lists.uci.edu [mailto:law-election-bounces at department-lists.uci.edu] On Behalf Of Rick Hasen
Sent: Tuesday, December 06, 2011 3:17 PM
To: JBoppjr at aol.com
Cc: law-election at uci.edu
Subject: [EL] Citizens United as precedent

Ah, now I see.  I think you are correct on this point Jim.  The word should not have been "precedent" but "logic" or "rational consequences."

It is not much of a defense, but those words got introduced in the editing process.  (My original draft began: "Next week Supreme Court justices will meet in a private conference to consider whether to hear an appeal challenging the federal law which bars most foreign individuals, entities, and governments from spending money to influence U.S. elections.  Whether or not the Court sets the case for a full hearing, it is likely to conclude that the law does not violate the First Amendment rights of foreigners to participate in our elections.  That’s the right result, but it is one that demonstrates the illogic and incoherence of the Supreme Court’s recent Citizens United v. FEC decision upholding similar rights for corporations.  The case before the Court, Bluman v. FEC, concerns the rights of foreign non-citizens living in the U.S. to spend money in federal elections, but if it is successful it would open the door to spending by non-citizens living outside the U.S., foreign corporations, and even foreign governments.  There are many good reasons for federal law to bar such election-related spending by foreigners, but each runs headlong into the reasoning of the Supreme Court’s Citizens United case.  ")

Would you care to opine on the issue for the Court to decide?  And how that rationale might differ from the logic or rational consequences of Citizens United.

Rick

On 12/6/11 3:09 PM, JBoppjr at aol.com<mailto:JBoppjr at aol.com> wrote:
Well, that is an issue for the Court now to decide, but to say that CU decided it somehow that for the Court to uphold the foreigner ban it must "ignore the precedent of Citizens United" is just flat wrong, as your question seems to assume.  Jim Bopp

In a message dated 12/6/2011 5:34:27 P.M. Eastern Standard Time, rhasen at law.uci.edu<mailto:rhasen at law.uci.edu> writes:
What's the compelling interest Jim?  I contend in my piece that "national security" and excluding foreigners from devices of democratic decisionmaking both boil down in the campaign finance context to one of the rejected compelling interests (corruption, antidistortion) rejected as a limitation on corporate independent expenditures in CU.

On 12/6/11 12:10 PM, JBoppjr at aol.com<mailto:JBoppjr at aol.com> wrote:
Rich's comment could not be more wrong:

Whether or not the Court sets the case for a full hearing, it is likely to conclude that our current law does not violate the First Amendment rights of foreigners. That would be the right result. But it would require ignoring the precedent of Citizens United v. FEC<http://www.law.cornell.edu/supct/html/08-205.ZS.html>, which upheld similar rights for corporations

The analysis of CU requires (1) is the speech protected by the First Amendment, (2) if so is there a compelling governmental interest sufficient to abridge it.   Regarding CU's (1), yes speech by foreigners, aliens, and the Red Chinese Army is speech protected by the First Amendment.  However, re CU's (2) CU did not decide if there is a compelling governmental interest sufficient to abridge the speech of foreigners.  That would be the question before the court not addressed in CU.

So CU applies and use of its analysis is perfectly consistent with a holding that the speech of the Red Chinese Army may be banned.  Jim Bopp

In a message dated 12/6/2011 12:21:25 A.M. Eastern Standard Time, rhasen at law.uci.edu<mailto:rhasen at law.uci.edu> writes:
“Will Foreigners Decide the 2012 Election? The Extreme Unintended Consequences of Citizens United.”<http://electionlawblog.org/?p=26137>
Posted on December 5, 2011 9:18 pm<http://electionlawblog.org/?p=26137> by Rick Hasen<http://electionlawblog.org/?author=3>

I have written this commentary<http://www.tnr.com/article/politics/98162/citizens-united-foreign-money> for The New Republic.  It begins:

Let’s say that the leader of a foreign country, one with military or economic interests adverse to the United States, took a look at our 2012 elections and decided to spend millions of dollars in hopes of determining which party held control over the House, the Senate, or the White House. Most of us would consider that scenario highly distressing, to say the least. And current federal law does indeed bar most foreign individuals, entities, and governments from spending money to influence U.S. elections and contributing to candidates.

This isn’t a law that inspires much opposition in Washington: Neither party asserts that foreigners have a First Amendment right to participate in our elections. But according to the twisted logic of the Supreme Court’s recent decision in Citizens United v. FEC<http://www.law.cornell.edu/supct/html/08-205.ZS.html>, the law’s constitutionality has been called into question.

Fortunately, the Court may be wise enough not to use its own flawed decision as a future roadmap. On Friday, Supreme Court justices will meet in a private conference to consider<http://www.supremecourt.gov/Search.aspx?FileName=/docketfiles/11-275.htm> whether to hear Bluman v. FEC<https://ecf.dcd.uscourts.gov/cgi-bin/show_public_doc?2010cv1766-37>, a case that concerns the rights of foreign non-citizens living in the U.S to spend money in U.S. elections. Whether or not the Court sets the case for a full hearing, it is likely to conclude that our current law does not violate the First Amendment rights of foreigners. That would be the right result. But it would require ignoring the precedent of Citizens United v. FEC<http://www.law.cornell.edu/supct/html/08-205.ZS.html>, which upheld similar rights for corporations.

it concludes:

In their<http://electionlawblog.org/wp-content/uploads/bluman-js.pdf> briefs<http://electionlawblog.org/wp-content/uploads/Bluman-Opp-to-Motion-to-Dismiss-or-Affirm.pdf> before the Supreme Court, the Bluman plaintiffs point to some of my earlier writing<http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1620576> noting the contradiction between the logic of Citizens United and the government’s position in this case. They—though not most of the campaign finance deregulation lobby, which (aside from the Institute for Justice<http://www.scribd.com/doc/67591387/Bluman-v-FEC-amicus-brief>) has sat out the case—urge the Court to hear the case, rather than simply affirm the lower court, to bring additional coherence to the law. But what the current challenge makes clear is that the Supreme Court has erred—not in its failure to extend election spending rights to foreign nationals, but in the faulty reasoning behind its decision in Citizens United.
[cid:X.MA1.1323202222 at aol.com]<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D26137&title=%E2%80%9CWill%20Foreigners%20Decide%20the%202012%20Election%3F%20The%20Extreme%20Unintended%20Consequences%20of%20Citizens%20United.%E2%80%9D&description=>
Posted in campaign finance<http://electionlawblog.org/?cat=10> | Comments Off
“The Broken System of Campaign Finance”<http://electionlawblog.org/?p=26134>
Posted on December 5, 2011 9:02 pm<http://electionlawblog.org/?p=26134> by Rick Hasen<http://electionlawblog.org/?author=3>

The San Diego Union Tribune offers this editorial<http://www.signonsandiego.com/news/2011/dec/05/the-broken-system-of-campaign-finance/>.
[cid:X.MA2.1323202222 at aol.com]<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D26134&title=%E2%80%9CThe%20Broken%20System%20of%20Campaign%20Finance%E2%80%9D&description=>
Posted in campaign finance<http://electionlawblog.org/?cat=10> | Comments Off
“Mapping the Future: Chandler’s seat is focus of redistricting in Kentucky, but Democrats may want more”<http://electionlawblog.org/?p=26131>
Posted on December 5, 2011 8:39 pm<http://electionlawblog.org/?p=26131> by Rick Hasen<http://electionlawblog.org/?author=3>

The Fix reports<http://www.washingtonpost.com/blogs/the-fix/post/chandlers-seat-is-focus-of-redistricting-in-kentucky-but-democrats-may-want-more/2011/12/05/gIQAlskvWO_blog.html>.
[cid:X.MA3.1323202222 at aol.com]<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D26131&title=%E2%80%9CMapping%20the%20Future%3A%20Chandler%E2%80%99s%20seat%20is%20focus%20of%20redistricting%20in%20Kentucky%2C%20but%20Democrats%20may%20want%20more%E2%80%9D&description=>
Posted in redistricting<http://electionlawblog.org/?cat=6> | Comments Off
Redistricting Back Before the California Supreme Court<http://electionlawblog.org/?p=26126>
Posted on December 5, 2011 8:00 pm<http://electionlawblog.org/?p=26126> by Rick Hasen<http://electionlawblog.org/?author=3>

Horvitz and Levy’s “At the Lectern” blog reports<http://www.atthelectern.com/redistricting-back-before-supreme-court/>.
[cid:X.MA4.1323202222 at aol.com]<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D26126&title=Redistricting%20Back%20Before%20the%20California%20Supreme%20Court&description=>
Posted in citizen commissions<http://electionlawblog.org/?cat=7>, redistricting<http://electionlawblog.org/?cat=6> | Comments Off
“AlterNet: Bullies, Liars and Impostors: How Facebook and Go Daddy Shield Scott Walker’s Online Guerillas”<http://electionlawblog.org/?p=26124>
Posted on December 5, 2011 7:57 pm<http://electionlawblog.org/?p=26124> by Rick Hasen<http://electionlawblog.org/?author=3>

AlterNet<http://www.alternet.org/module/printversion/153306> on chicanery in the Wisconsin recall and false information spread over the Internet.
[cid:X.MA5.1323202222 at aol.com]<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D26124&title=%E2%80%9CAlterNet%3A%20Bullies%2C%20Liars%20and%20Impostors%3A%20How%20Facebook%20and%20Go%20Daddy%20Shield%20Scott%20Walker%E2%80%99s%20Online%20Guerillas%E2%80%9D&description=>
Posted in campaigns<http://electionlawblog.org/?cat=59>, chicanery<http://electionlawblog.org/?cat=12>, recall elections<http://electionlawblog.org/?cat=11> | Comments Off
“Gingrich’s Health Care Consultancy: Is It Lobbying?”<http://electionlawblog.org/?p=26121>
Posted on December 5, 2011 7:54 pm<http://electionlawblog.org/?p=26121> by Rick Hasen<http://electionlawblog.org/?author=3>

NPR reports<http://www.npr.org/2011/12/05/143146399/gingrichs-health-care-consultancy-is-it-lobbying>.
[cid:X.MA6.1323202222 at aol.com]<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D26121&title=%E2%80%9CGingrich%E2%80%99s%20Health%20Care%20Consultancy%3A%20Is%20It%20Lobbying%3F%E2%80%9D&description=>
Posted in lobbying<http://electionlawblog.org/?cat=28> | Comments Off
“LA’s Civic Action Against Dark Money”<http://electionlawblog.org/?p=26119>
Posted on December 5, 2011 7:52 pm<http://electionlawblog.org/?p=26119> by Rick Hasen<http://electionlawblog.org/?author=3>

Mother Jones reports<http://motherjones.com/mojo/2011/12/la-civic-action-against-dark-money>.
[cid:X.MA7.1323202222 at aol.com]<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D26119&title=%E2%80%9CLA%E2%80%99s%20Civic%20Action%20Against%20Dark%20Money%E2%80%9D&description=>
Posted in campaign finance<http://electionlawblog.org/?cat=10> | Comments Off
“Justice Kennedy Dissents: What Campaign Finance And The Sixth Amendment Have In Common.”<http://electionlawblog.org/?p=26116>
Posted on December 5, 2011 7:40 pm<http://electionlawblog.org/?p=26116> by Rick Hasen<http://electionlawblog.org/?author=3>

HuffPo reports<http://www.huffingtonpost.com/2011/12/05/justice-kennedy-dissents-campaign-finance-sixth-amendment_n_1126493.html>.
[cid:X.MA8.1323202222 at aol.com]<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D26116&title=%E2%80%9CJustice%20Kennedy%20Dissents%3A%20What%20Campaign%20Finance%20And%20The%20Sixth%20Amendment%20Have%20In%20Common.%E2%80%9D&description=>
Posted in campaign finance<http://electionlawblog.org/?cat=10>, Supreme Court<http://electionlawblog.org/?cat=29> | Comments Off
“Maryland Case May Discourage Political Dirty Tricks”<http://electionlawblog.org/?p=26113>
Posted on December 5, 2011 7:36 pm<http://electionlawblog.org/?p=26113> by Rick Hasen<http://electionlawblog.org/?author=3>

NPR offers this report<http://www.npr.org/2011/12/05/143142090/maryland-case-may-dissuade-political-dirty-tricks> on the robocall case. The case has now gone to the jury.<http://www.washingtonpost.com/local/dc-politics/jury-begins-deliberations-in-maryland-robocall-case/2011/12/05/gIQAN73nXO_story.html>
[cid:X.MA9.1323202222 at aol.com]<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D26113&title=%E2%80%9CMaryland%20Case%20May%20Discourage%20Political%20Dirty%20Tricks%E2%80%9D&description=>
Posted in campaigns<http://electionlawblog.org/?cat=59>, chicanery<http://electionlawblog.org/?cat=12> | Comments Off
“Democrats win fight over Colorado Congressional boundaries”<http://electionlawblog.org/?p=26111>
Posted on December 5, 2011 9:07 am<http://electionlawblog.org/?p=26111> by Rick Hasen<http://electionlawblog.org/?author=3>

Denver Post<http://www.denverpost.com/breakingnews/ci_19473229>: “Democrats have won this decade’s congressional redistricting battle. The Colorado Supreme Court this morning affirmed the ruling of a Denver’ chief district court judge, who selected the Democrats’ map after an October trial. The Supreme Court said in its ruling that a written opinion would be issued later.”  You can find the apparently unanimous court order here<http://www.courts.state.co.us/userfiles/file/Court_Probation/Supreme_Court/Case_Announcements/Files/2011/11SC842-%20Order%20and%20Mandate.pdf>.
[cid:X.MA10.1323202222 at aol.com]<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D26111&title=%E2%80%9CDemocrats%20win%20fight%20over%20Colorado%20Congressional%20boundaries%E2%80%9D&description=>
Posted in redistricting<http://electionlawblog.org/?cat=6> | Comments Off
Read the Oppositions to Texas Congressional Redistricting Stay Request<http://electionlawblog.org/?p=26106>
Posted on December 5, 2011 9:04 am<http://electionlawblog.org/?p=26106> by Rick Hasen<http://electionlawblog.org/?author=3>

Here<http://electionlawblog.org/wp-content/uploads/pls-cong-opp.pdf> and here<http://electionlawblog.org/wp-content/uploads/malc-cong-opp.pdf>. The briefing now appears complete, unless Texas files an optional reply.  Justice Scalia, or the Court, could rule at any time.
[cid:X.MA11.1323202222 at aol.com]<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D26106&title=Read%20the%20Oppositions%20to%20Texas%20Congressional%20Redistricting%20Stay%20Request&description=>
Posted in redistricting<http://electionlawblog.org/?cat=6>, Voting Rights Act<http://electionlawblog.org/?cat=15> | Comments Off
A Repeat of Mid-Decade Redistricting Coming to Texas?<http://electionlawblog.org/?p=26103>
Posted on December 5, 2011 8:47 am<http://electionlawblog.org/?p=26103> by Rick Hasen<http://electionlawblog.org/?author=3>

Could be.<http://txredistricting.org/post/13782484051/gop-state-chair-promises-to-push-to-have-legislature>
[cid:X.MA12.1323202222 at aol.com]<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D26103&title=A%20Repeat%20of%20Mid-Decade%20Redistricting%20Coming%20to%20Texas%3F&description=>
Posted in redistricting<http://electionlawblog.org/?cat=6> | Comments Off
--
Rick Hasen
Professor of Law and Political Science
UC Irvine School of Law
401 E. Peltason Dr., Suite 1000
Irvine, CA 92697-8000
949.824.3072 - office
949.824.0495 - fax
rhasen at law.uci.edu<mailto:rhasen at law.uci.edu>
http://law.uci.edu/faculty/page1_r_hasen.html
http://electionlawblog.org<http://electionlawblog.org/>

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Rick Hasen
Professor of Law and Political Science
UC Irvine School of Law
401 E. Peltason Dr., Suite 1000
Irvine, CA 92697-8000
949.824.3072 - office
949.824.0495 - fax
rhasen at law.uci.edu<mailto:rhasen at law.uci.edu>
http://law.uci.edu/faculty/page1_r_hasen.html
http://electionlawblog.org<http://electionlawblog.org/>

--
Rick Hasen
Professor of Law and Political Science
UC Irvine School of Law
401 E. Peltason Dr., Suite 1000
Irvine, CA 92697-8000
949.824.3072 - office
949.824.0495 - fax
rhasen at law.uci.edu<mailto:rhasen at law.uci.edu>
http://law.uci.edu/faculty/page1_r_hasen.html
http://electionlawblog.org
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