[EL] Citizens United as precedent
Trevor Potter
tpotter at capdale.com
Wed Dec 7 07:26:44 PST 2011
But I read the "theory" of Citizen:s United as saying that the first
amendment right involved is that of voters to hear every message
regardless of source and thereby broaden the information available to
voters--and that right is held by US citizens. So, saying that foreign
corporations have fewer rights than "we do" (Rob is presumably including
US corporations in the "we")doesn't square the circle here on foreign
speech IF the right involved is that of the US listeners to hear all
possible speech.
Further, unlike individual citizenship, US corporate "citizenship" can
be obtained merely by registering in Delaware. The money, shareholders,
parents, directors, and decision makers of such a "US corporate citizen"
may still be foreign...but surely such a foreign-oriented US corporation
has the same rights as other US corporations under Rob's answer?
Trevor Potter
-----Original Message-----
From: Kelner, Robert [mailto:rkelner at cov.com]
Sent: Wednesday, December 07, 2011 8:18 AM
To: Trevor Potter; 'JBoppjr at aol.com'; 'lehto.paul at gmail.com';
'rhasen at law.uci.edu'
Cc: 'law-election at uci.edu'
Subject: Re: [EL] Citizens United as precedent
The common sense answer to Trevor's question is that foreigners are not
entitled to the same rights under our Constitution that we are. The
Court's case law on that point is not terribly consistent with this
common sense proposition. But the Court's real problem here is
reconciling the necessary decision in this case with its prior case law
concerning the status of foreigners under the Constitution, not
reconciling it with Citizens United.
----- Original Message -----
From: Trevor Potter [mailto:tpotter at capdale.com]
Sent: Tuesday, December 06, 2011 07:27 PM
To: JBoppjr at aol.com <JBoppjr at aol.com>; lehto.paul at gmail.com
<lehto.paul at gmail.com>; rhasen at law.uci.edu <rhasen at law.uci.edu>
Cc: law-election at uci.edu <law-election at uci.edu>
Subject: Re: [EL] Citizens United as precedent
But Citizens United held in part 2 of the analysis (as Jim explains it)
that there IS no governmental justification for limiting speech based on
source. That is why corporate independent speech cannot be limited, the
Court says. So Rick's question is why can foreign political speech be
restricted based on its source,, if source cannot be a valid
governmental justification for speech regulation, as the majority held
in Citizens United??
Trevor Potter
Sent by Good Messaging (www.good.com)
-----Original Message-----
From: JBoppjr at aol.com [mailto:JBoppjr at aol.com]
Sent: Tuesday, December 06, 2011 07:01 PM Eastern Standard Time
To: lehto.paul at gmail.com; rhasen at law.uci.edu
Cc: law-election at uci.edu
Subject: Re: [EL] Citizens United as precedent
I understand that there are two parts to a decision: its holding and its
analysis. CU's holding was that the First Amendment prevents the
government
from prohibiting corporations and labor unions from doing independent
expenditures and electioneering communications. The analysis is I have
explained. It has two parts: (1) is the speech protected by the First
Amendment,
and (2) if so, is there a compelling governmental interest sufficient
to
abridge it. I have argued that the consequence of the analysis, as
applied
to other questions, like corporate contributionns, leads to the result
that
corporate contributions cannot be banned. But this is much difference
than
saying that CU has already decided this, like Rick did in suggesting
that CU
had to be ignored to uphold the foreign entity ban. Jim Bopp
In a message dated 12/6/2011 6:36:17 P.M. Eastern Standard Time,
lehto.paul at gmail.com writes:
On Tue, Dec 6, 2011 at 6:16 PM, Rick Hasen <_rhasen at law.uci.edu_
(mailto:rhasen at law.uci.edu) > wrote:
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."
And, Jim, didn't you file a small slew of lawsuits with the FEC and/or
elsewhere within days or weeks of the Citizens United decision that
argued
that the "precedent," er, logic and rational consequences of Citizens
United,
required multiple other changes in law and regulation? Or, in doing
so, do
you rely solely on the narrow holding of Citizens United?
Cases are termed "watershed" or "landmark" cases for reasons that go
beyond their narrow holding, even where that holding is a reversal of
prior
precedent. Such watershed or landmark cases tend to introduce new
logic or new
approaches to areas of the law that tend to both call into question or
doubt prior case law as well as heavily influence later cases - at
least if
the composition of the Court remains stable on the issue.
I can see Jim disagreeing on the question of how CU ultimately impacts
this latest case, but still can't understand Jim's reticence to own up
to or
even be proud of the brave new world of election law logic Citizens
United
introduced. He relies on that in his subsequent litigation, so why
quibble
over whether it is the "holding" of CU or, instead, CU's new logic, its
rational consequences, or its assertion of new principles or
re-emphasis of
older principles or any combination thereof that does the job?
Like it or not, it's a watershed case for reasons that go well beyond
it's
"holding" or "precedent." (And I do not like it). I suppose the
reason
some who do like CU don't celebrate this aspect of it is the cognitive
dissonance that results with other positions held, like opposition to
"judicial
activism."
Paul Lehto, J.D.
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.ht
m) 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-D
ismiss-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=26
137&title="
Will%20Foreigners%20Decide%20the%202012%20Election?%20The%20Extreme%20Un
intended%20Consequences%20of%20Citizens%20United."&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-cam
paign-finance/) .
(http://www.addtoany.com/share_save#url=http://electionlawblog.org/?p=26
134&title="The%20Broken%20System%20of%20Campaign%20Finance"&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-focu
s-of-redistricting-in-kentucky-but-democrats-may-want-more/201
1/12/05/gIQAlskvWO_blog.html) .
(http://www.addtoany.com/share_save#url=http://electionlawblog.org/?p=26
131&title="Mapping%20the%20Future:%20Chandler'
s%20seat%20is%20focus%20of%20redistricting%20in%20Kentucky,%20but%20Demo
crats%20may%20want%20more"&descri
ption=)
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/) .
(http://www.addtoany.com/share_save#url=http://electionlawblog.org/?p=26
126&title=Redistricting%20Back%20Before%20the%20California%20Supreme%20C
ourt&de
scription=)
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.
(http://www.addtoany.com/share_save#url=http://electionlawblog.org/?p=26
124&title="
AlterNet:%20Bullies,%20Liars%20and%20Impostors:%20How%20Facebook%20and%2
0Go%20Daddy%20Shield%20Scott%20Walker's%20Online%20Guerillas"
&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-consultan
cy-is-it-lobbying) .
(http://www.addtoany.com/share_save#url=http://electionlawblog.org/?p=26
121&title="Gingrich's%20Health%20Care%20Consultancy:%20Is%20It%20Lobbyin
g?"
&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)
.
(http://www.addtoany.com/share_save#url=http://electionlawblog.org/?p=26
119&title="LA's%20Civic%20Action%20Against%20Dark%20Money"&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) .
(http://www.addtoany.com/share_save#url=http://electionlawblog.org/?p=26
116&title="
Justice%20Kennedy%20Dissents:%20What%20Campaign%20Finance%20And%20The%20
Sixth%20Amendment%20Have%20In%20Common."&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-poli
tical-dirty-tricks) on the robocall case. The case
has now _gone to the jury._
(http://www.washingtonpost.com/local/dc-politics/jury-begins-deliberatio
ns-in-maryland-robocall-case/2011/12/05/gIQAN73nXO_sto
ry.html)
(http://www.addtoany.com/share_save#url=http://electionlawblog.org/?p=26
113&title="Maryland%20Case%20May%20Discourage%20Political%20Dirty%20Tric
ks"
&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_Co
urt/Case_Announc
ements/Files/2011/11SC842-%20Order%20and%20Mandate.pdf) .
(http://www.addtoany.com/share_save#url=http://electionlawblog.org/?p=26
111&title="
Democrats%20win%20fight%20over%20Colorado%20Congressional%20boundaries"&
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.
(http://www.addtoany.com/share_save#url=http://electionlawblog.org/?p=26
106&title=Read%20the%20Oppositions%20to%20Texas%20Congressional%20Redist
ricting
%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)
(http://www.addtoany.com/share_save#url=http://electionlawblog.org/?p=26
103&title=A%20Repeat%20of%20Mid-Decade%20Redistricting%20Coming%20to%20T
exas?&d
escription=)
Posted in _redistricting_ (http://electionlawblog.org/?cat=6) |
Comments
Off
--
Rick Hasen
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UC Irvine School of Law
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UC Irvine School of Law
401 E. Peltason Dr., Suite 1000
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_949.824.3072_ (tel:949.824.3072) - office
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