[EL] Let's Put Citizens United to the Test: Pakistani Agent $ in U.S. Elections
Bill Maurer
wmaurer at ij.org
Tue Jul 19 12:36:18 PDT 2011
The identity doesn't matter in the First Amendment context-and Rick
correctly points out that I've been using the language of reform in my
discussion so far, that is, I've been treating the First Amendment as a
positive grant of a right as opposed to a restriction on Congress's
power. So, Rick is correct that it's not a grant of rights, but a
restriction on Congress's power. The question for me then is whether
the courts would find the Constitution's grant of foreign policy or
national security powers to Congress and the President elsewhere in the
Constitution sufficiently important and Congress's implementation of
those powers sufficiently tailored. That would depend on the facts.
________________________________
From: Rick Hasen [mailto:rhasen at law.uci.edu]
Sent: Tuesday, July 19, 2011 12:23 PM
To: Bill Maurer
Cc: law-election at uci.edu
Subject: Re: [EL] Let's Put Citizens United to the Test: Pakistani Agent
$ in U.S. Elections
Could you please explain the "national security" argument further? How
can "more speech" be a national security risk? And what of CU's
language that the identity of the speaker does not matter?
Thanks!
Rick
On 7/19/2011 12:20 PM, Bill Maurer wrote:
Assuming the Pakistani government would claim the protections of the
First Amendment, the question then becomes is the ban on contributions
by foreign sovereigns is supported by a compelling government interest
and is narrowly tailored to satisfy that interest? I would imagine that
the feds would have national security arguments that are fairly strong
(and would vary based on the foreign government involved) and then there
is the courts' traditional deference to the executive branch in foreign
relations. In other words, whether the law works as a campaign finance
law doesn't end the question--one would also have to consider whether it
works as a matter of foreign policy or national security.
Given how little I know about the latter, however, all my assumptions
are guaranteed wrong or you get your donation from a foreign government
back.
________________________________
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 11:51 AM
To: Smith, Brad
Cc: law-election at uci.edu
Subject: Re: [EL] Let's Put Citizens United to the Test: Pakistani Agent
$ in U.S. Elections
I wonder if others in the anti-regulation community share Brad's "no
strong opinion" on this issue. If the identity of the speaker doesn't
matter, and more speech is always better, I'm not sure why foreign
spending (though perhaps not foreign government spending?) would not
also be celebrated along with corporate spending.
On 7/19/2011 11:41 AM, Smith, Brad wrote:
I'm sorry my answer was unclear. I think FARA is constitutional. The
question I don't care much about and have no strong opinion on is the
one you ask. Either way that it would be decided would raise some knotty
constitutional issues. But as Bill Mauer notes, presumably in this
particular case, it's not an issue, for not only is this now a FARA
case, but even if it were a conduit case I doubt the Government of
Pakistan could claim a constitutional right.
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 2:21 PM
To: Smith, Brad
Cc: law-election at uci.edu
Subject: Re: [EL] Let's Put Citizens United to the Test: Pakistani Agent
$ in U.S. Elections
I'm sorry that my question was unclear. I'm not much interested in FARA
either. I am asking whether 2 USC section 441e's bar on contributions
and spending by foreign nationals would be unconstitutional as applied
to foreign citizens, corporations, and governments (a) on U.S. soil and
(b) not on U.S. soil.
On 7/19/2011 11:12 AM, Smith, Brad wrote:
Does a foreign citizen on U.S. soil have First Amendment rights? Other
constitutional rights? Could a foreign citizen on U.S. soil be
prohibited from having an abortion (assuming Roe v. Wade remains the
law)? From praying? From attending a campaign rally and cheering? From
handing out flyers for a campaign? From performing a rock concert or
making an appearance for a candidate? From endorsing a candidate?
I think FARA is constitutional. I don't really much care about this
question either way, or have a strong opinion on it, but certainly the
answer Rick obviously wants would raise lots of constitutional
questions, too.
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 1:20 PM
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-arre
sts-pakistani-agent-for-making-political-contributions-in-us>
<http://firstread.msnbc.msn.com/_news/2011/07/19/7112067-fbi-arrests-pak
istani-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-nati
onals-19137877>
<http://us-code.vlex.com/vid/contributions-donations-foreign-nationals-1
9137877> 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://ww
<http://www.firstamendmentcenter.org/analys%0d%0ais.aspx?id=18958>
<http://www.firstamendmentcenter.org/analysis.aspx?id=18958>
<http://www.firstamendmentcenter.org/analysis.aspx?id=18958>
w.firstamendmentcenter.org/analysis.aspx?id=18
<http://www.firstamendmentcenter.org/analysis.aspx?id=18958>
<http://www.firstamendmentcenter.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> .)
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me%20even%
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homas%E2%80%99s%20position%20too.%0D%0A%0D%0ASo%20let%E2%80%99s%20hear%2
0from%20these%20anti-regulatory%20folks.%20%20If%20this%20activity%20is%
20proven%20against%20the%20Pakistani%20agent%2C%20would%20prosecution%20
of%20the%20agent%20be%20unconstitutional%20under%20the%20First%20Amendme
nt%3F%20%20%28For%20my%20thoughts%20on%20th
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%20foreign%20national%20question%2C%20see%20my%20recent%20Michigan%20pie
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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/>
--
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
--
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
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