[EL] Citizens United as precedent
Justin Levitt
levittj at lls.edu
Tue Dec 6 17:09:46 PST 2011
Well, for me, these two questions dovetail, in part because the
"interference" of information with American self-governance doesn't
depend on national borders. Perhaps a tangible example will help. The
Economist, I understand, is a magazine with a rather substantial
American readership. It's also a magazine published by a foreign
corporation, with foreign shareholders (and also, perhaps, American
shareholders). Presumably, the American subscribers find this foreign
perspective enlightening. I'm not sure why they would find it any less
informative when it pertains to political issues. If this is
information sought by Americans that helps Americans make decisions, why
is it any less important in self-governance based on the fact that the
information is derived from an overseas source? Put differently, it may
be "difficult or unwise" to prevent Americans from viewing expenditures
overseas. But if it's constitutional to prohibit influence by overseas
sources in order to protect self-governance, why wouldn't it be
_constitutional_ for Congress to prohibit Americans from reading the
Economist, if Congress chose to do so? And doesn't that distinction
entail making decisions on what information Americans are entitled to
have in order to self-govern?
Justin
On 12/6/2011 4:46 PM, Scarberry, Mark wrote:
>
> 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 onDecember 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/.
>
> http://www.addtoany.com/share_save#url=http://electionlawblog.org/?p=26137&title=â??Will
> Foreigners Decide the 2012 Election? The Extreme Unintended
> Consequences of Citizens United.â??&description=
> <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 incampaign finance <http://electionlawblog.org/?cat=10>
> |Comments Off
>
>
> "The Broken System of Campaign Finance"
> <http://electionlawblog.org/?p=26134>
>
> Posted onDecember 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/>.
>
> http://www.addtoany.com/share_save#url=http://electionlawblog.org/?p=26134&title=â??The
> Broken System of Campaign Financeâ??&description=
> <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 incampaign 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 onDecember 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>.
>
> http://www.addtoany.com/share_save#url=http://electionlawblog.org/?p=26131&title=â??Mapping
> the Future: Chandlerâ??s seat is focus of redistricting in
> Kentucky, but Democrats may want moreâ??&description=
> <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 inredistricting <http://electionlawblog.org/?cat=6>
> |Comments Off
>
>
> Redistricting Back Before the California Supreme Court
> <http://electionlawblog.org/?p=26126>
>
> Posted onDecember 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/>.
>
> http://www.addtoany.com/share_save#url=http://electionlawblog.org/?p=26126&title=Redistricting
> Back Before the California Supreme Court&description=
> <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 incitizen 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 onDecember 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.
>
> http://www.addtoany.com/share_save#url=http://electionlawblog.org/?p=26124&title=â??AlterNet:
> Bullies, Liars and Impostors: How Facebook and Go Daddy Shield
> Scott Walkerâ??s Online Guerillasâ??&description=
> <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 incampaigns <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 onDecember 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>.
>
> http://www.addtoany.com/share_save#url=http://electionlawblog.org/?p=26121&title=â??Gingrichâ??s
> Health Care Consultancy: Is It Lobbying?â??&description=
> <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 inlobbying <http://electionlawblog.org/?cat=28>
> |Comments Off
>
>
> "LA's Civic Action Against Dark Money"
> <http://electionlawblog.org/?p=26119>
>
> Posted onDecember 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>.
>
> http://www.addtoany.com/share_save#url=http://electionlawblog.org/?p=26119&title=â??LAâ??s
> Civic Action Against Dark Moneyâ??&description=
> <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 incampaign 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 onDecember 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>.
>
> http://www.addtoany.com/share_save#url=http://electionlawblog.org/?p=26116&title=â??Justice
> Kennedy Dissents: What Campaign Finance And The Sixth
> Amendment Have In Common.â??&description=
> <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 incampaign 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 onDecember 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>
>
> http://www.addtoany.com/share_save#url=http://electionlawblog.org/?p=26113&title=â??Maryland
> Case May Discourage Political Dirty Tricksâ??&description=
> <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 incampaigns <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 onDecember 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>.
>
> http://www.addtoany.com/share_save#url=http://electionlawblog.org/?p=26111&title=â??Democrats
> win fight over Colorado Congressional
> boundariesâ??&description=
> <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 inredistricting <http://electionlawblog.org/?cat=6>
> |Comments Off
>
>
> Read the Oppositions to Texas Congressional Redistricting
> Stay Request <http://electionlawblog.org/?p=26106>
>
> Posted onDecember 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.
>
> http://www.addtoany.com/share_save#url=http://electionlawblog.org/?p=26106&title=Read
> the Oppositions to Texas Congressional Redistricting Stay
> Request&description=
> <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 inredistricting <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 onDecember 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>
>
> http://www.addtoany.com/share_save#url=http://electionlawblog.org/?p=26103&title=A
> Repeat of Mid-Decade Redistricting Coming to
> Texas?&description=
> <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 inredistricting <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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> <mailto:Law-election at department-lists.uci.edu>
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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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--
Justin Levitt
Associate Professor of Law
Loyola Law School | Los Angeles
919 Albany St.
Los Angeles, CA 90015
213-736-7417
justin.levitt at lls.edu
ssrn.com/author=698321
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