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

Tue Jul 19 11:17:34 PDT 2011

Because, as you know, Rick, the Supreme Court has no coherent First Amendment theory, which is the only reason the regulation you so cherish has stood up as well as it has.

Bradley A. Smith
Josiah H. Blackmore II/Shirley M. Nault Designated Professor of Law
Capital University Law School
303 E. Broad St.
Columbus, OH 43215
(614) 236-6317
http://www.law.capital.edu/Faculty/Bios/bsmith.asp

________________________________

From: law-election-bounces at department-lists.uci.edu on behalf of Rick Hasen
Sent: Tue 7/19/2011 1:35 PM
To: Bill Maurer
Cc: Josiah Neeley; law-election at uci.edu
Subject: Re: [EL] Let's Put Citizens United to the Test: Pakistani Agent $ in U.S. Elections

you tell me Bill.  And what about the charge against the Pakistani handlers?
If "the identity of the speaker does not matter, as CU tells us, why should this give you any pause?"
Here are the updates to my original post:

UPDATE:  Apparently the alleged agent is being charged with violating FARA, not the campaign finance laws.  But I think my same question remains.  Are limitations on this conduct a violation of the First Amendment?  If the agent were charged with campaign finance violations, would he have a valid First Amendment defense?

Further UPDATE:  Here is the DOJ press release <http://www.justice.gov/opa/pr/2011/July/11-nsd-937.html> , confirming that two people are charged with violating FARA by not registering as foreign agents.  The two, who are U.S. citizens, were not charged (at least not from the indictment) with conspiring to violate the ban on foreign contributions to candidates, though it seems that they could be if these facts are proven.

And so my question remains: should these two (and the Pakistani government or handlers) have a First Amendment defense, should they be charged with violating the law banning foreign contributions and spending in U.S. elections?

On 7/19/2011 10:33 AM, Bill Maurer wrote: 

	Is the Pakistani government covered by the First Amendment?

________________________________

	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, July 19, 2011 10:21 AM
	To: Josiah Neeley
	Cc: 'law-election at uci.edu'
	Subject: Re: [EL] Let's Put Citizens United to the Test: Pakistani Agent $ in U.S. Elections

	I believe it would apply if he were acting as a conduit for contributions from a foreign source.

	Assuming that's the case, would you or anyone else care to defend his constitutional right (or the rights of the Pakistani government or intelligence agency) to make contributions---or even independent expenditures---in federal electoins?

	On 7/19/2011 10:11 AM, Josiah Neeley wrote: 

	Here is a DoJ press release about the case. Mr. Kelner is correct that the prosecution is under FARA: 

	http://www.justice.gov/opa/pr/2011/July/11-nsd-937.html

	I would also add that Mr. Fai is a U.S. citizen, so a ban on contributions by foreign nationals would not apply to him. 

	________________________________________
	From: law-election-bounces at department-lists.uci.edu [law-election-bounces at department-lists.uci.edu] on behalf of Kelner, Robert [rkelner at cov.com]
	Sent: Tuesday, July 19, 2011 12:38 PM
	To: 'rhasen at law.uci.edu'; 'law-election at uci.edu'
	Subject: Re: [EL] Let's Put Citizens United to the Test: Pakistani Agent $ in U.S. Elections

	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 <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> <http://electionlawblog.org/?p=20587> 
	Posted on July 19, 2011<http://electionlawblog.org/?p=20587> <http://electionlawblog.org/?p=20587>  by Rick Hasen<http://electionlawblog.org/?author=3> <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> <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> <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=18 <http://www.firstamendme%20ntcenter.org/analysis.aspx?id=18958> 
	958> <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> <http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1620576> .)

	[Share]<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%20

	of%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%2 <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%2> 
	0government.%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 <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%2> 
	%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%20cl

	aim%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%20th <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%2> 
	e <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%2> 
	%20foreign%20national%20question%2C%20see%20my%20recent%20Michigan%20piece.%29%0D%0AShare%0D%0APosted%20in%20campaign%20finance%09%7C%20Comments%20Off> <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%2> 
	Posted in campaign finance<http://electionlawblog.org/?cat=10> <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> <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
	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
http://law.uci.edu/faculty/page1_r_hasen.html
http://electionlawblog.org <http://electionlawblog.org/> 

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