[EL] Let's Put Citizens United to the Test: Pakistani Agent $ in U.S. Elections

Tue Jul 19 10:21:18 PDT 2011

Craig, no correction is needed.  The alleged violation of FARA here would consist in the Pakistani having not registered.  This is a common trip wire used by prosecutors in espionage and terrorism elated cases.  Much like going after Al Capone for tax evasion.

Robert K. Kelner
COVINGTON & BURLING LLP
1201 Pennsylvania Avenue, NW
Washington, DC 20004
phone: (202) 662-5503
fax: (202) 778-5503
rkelner at cov.com

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From: law-election-bounces at department-lists.uci.edu [mailto:law-election-bounces at department-lists.uci.edu] On Behalf Of Craig Holman
Sent: Tuesday, July 19, 2011 1:04 PM
To: law-election at uci.edu
Subject: Re: [EL] Let's Put Citizens United to the Test: Pakistani Agent $ in U.S. Elections

Colleagues:

A minor technical correction to a previous post -- FARA does not ban foreign campaign contributions, It is only a disclosure law. Other federal statutes ban foreign contributions.

The Foreign Agents Registration Act was the first attempt at major lobbying reform at the federal level. FARA's primary purpose was to limit the influence of foreign agents and propaganda on American public policy. The law arose specifically in response to a perceived propaganda drive by Adolf Hitler to fan the Nazi movement in the United States. Though there was no explicit evidence, President Franklin Roosevelt and many members of Congress believed that Hitler was helping finance the Nazi movement.
FARA requires every agent representing a foreign principal to register with the Department of Justice and file disclosure forms outlining the purpose of representation, income and expenditures by the agent on behalf of the foreign principal. FARA requires only registration of foreign agents and disclosure of their activities, including disclosure of any lobbying expenditures or contributions made by the foreign principal. It does not attempt to restrict the behavior or lobbying activities of foreign agents, but other statutes do.

Craig Holman, Ph.D.
Government Affairs Lobbyist
Public Citizen
215 Pennsylvania Avenue NE
Washington, D.C. 20003
TEL: (202) 454-5182
CEL: (202) 905-7413
FAX: (202) 547-7392
Holman at aol.com

-----Original Message-----
From: Rick Hasen <rhasen at law.uci.edu>
To: Kelner, Robert <rkelner at cov.com>
Cc: 'law-election at uci.edu' <law-election at uci.edu>
Sent: Tue, Jul 19, 2011 12:44 pm
Subject: Re: [EL] Let's Put Citizens United to the Test: Pakistani Agent $ in U.S. Elections

But I'm more interested in the constitutional question.  Is it constitutionally permissible to bar these contributions?

On 7/19/2011 9:38 AM, Kelner, Robert wrote:
Either way, there would be a violation of the Foreign Agents Registration Act, which is more likely the basis for the Government's investigation.

From: Rick Hasen [mailto:rhasen at law.uci.edu]
Sent: Tuesday, July 19, 2011 12:06 PM
To: law-election at UCI.EDU<mailto:law-election at UCI.EDU> <law-election at uci.edu><mailto:law-election at uci.edu>
Subject: [EL] Let's Put Citizens United to the Test: Pakistani Agent $ in U.S. Elections

Let's Put Citizens United to the Test: Pakistani Agent $ in U.S. Elections<http://electionlawblog.org/?p=20587>
Posted on July 19, 2011<http://electionlawblog.org/?p=20587> by Rick Hasen<http://electionlawblog.org/?author=3>
NBC's Pete Williams reports<http://firstread.msnbc.msn.com/_news/2011/07/19/7112067-fbi-arrests-pakistani-agent-for-making-political-contributions-in-us> "Law enforcement sources say the FBI has arrested an agent of Pakistan's official state intelligence service, accusing him of making thousands of dollars in political contributions in the United States without disclosing his connections to the Pakistani government."
The conduct, if proven, is clearly illegal<http://us-code.vlex.com/vid/contributions-donations-foreign-nationals-19137877> under federal law.  But is that federal law unconstitutional?  Citizens United has told us that in the First Amendment independent spending context, the identity of the speaker does not matter for First Amendment purposes.  And further that independent spending cannot corrupt.  Some anti-campaign finance regulation folks have claimed that Citizens United should be extended to allow unlimited contributions, from whatever source, to candidates (and some even claim that it is unconstitutional to require even disclosure of such contributions).  That's Justice Thomas's position<http://www.firstamendmentcenter.org/analysis.aspx?id=18958> too.
So let's hear from these anti-regulatory folks.  If this activity is proven against the Pakistani agent, would prosecution of the agent be unconstitutional under the First Amendment?  (For my thoughts on the foreign national question, see my recent Michigan piece<http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1620576>.)
[cid:113401817 at 19072011-1F78]<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D20587&title=Let%E2%80%99s%20Put%20Citizens%20United%20to%20the%20Test%3A%20Pakistani%20Agent%20%24%20in%20U.S.%20Elections&description=Let%E2%80%99s%20Put%20Citizens%20United%20to%20the%20Test%3A%20Pakistani%20Agent%20%24%20in%20U.S.%20Elections%0D%0APosted%20on%20July%2019%2C%202011%20by%20Rick%20Hasen%0D%0A%0D%0ANBC%E2%80%99s%20Pete%20Williams%20reports%20%E2%80%9CLaw%20enforcement%20sources%20say%20the%20FBI%20has%20arrested%20an%20agent%20of%20Pakistan%E2%80%99s%20official%20state%20intelligence%20service%2C%20accusing%20him%20of%20making%20thousands%20of%20dollars%20in%20political%20contributions%20in%20the%20United%20States%20without%20disclosing%20his%20connections%20to%20the%20Pakistani%20government.%E2%80%9D%0D%0A%0D%0AThe%20conduct%2C%20if%20proven%2C%20is%20clearly%20illegal%20under%20federal%20law.%20%20But%20is%20that%20federal%20law%20unconstitutional%3F%20%20Citizens%20%0A%20United%20has%20told%20us%20that%20in%20the%20First%20Amendment%20independent%20spending%20context%2C%20the%20identity%20of%20the%20speaker%20does%20not%20matter%20for%20First%20Amendment%20purposes.%20%20And%20further%20that%20independent%20spending%20cannot%20corrupt.%20%20Some%20anti-campaign%20finance%20regulation%20folks%20have%20claimed%20that%20Citizens%20United%20should%20be%20extended%20to%20allow%20unlimited%20contributions%2C%20from%20whatever%20source%2C%20to%20candidates%20%28and%20some%20even%20claim%20that%20it%20is%20unconstitutional%20to%20require%20even%20disclosure%20of%20such%20contributions%29.%20%20That%E2%80%99s%20Justice%20Thomas%E2%80%99s%20position%20too.%0D%0A%0D%0ASo%20let%E2%80%99s%20hear%20from%20these%20anti-regulatory%20folks.%20%20If%20this%20activity%20is%20proven%20against%20the%20Pakistani%20agent%2C%20would%20prosecution%20of%20the%20agent%20be%20unconstitutional%20under%20the%20First%20Amendment%3F%20%20%28For%20my%20thoughts%20on%20%20the%0A%20foreign%20national%20question%2C%20see%20my%20recent%20Michigan%20piece.%29%0D%0AShare%0D%0APosted%20in%20campaign%20finance%09%7C%20Comments%20Off>
Posted in campaign finance<http://electionlawblog.org/?cat=10> | 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

--
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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