[EL] Let's Put Citizens United to the Test: Pakistani Agent $ in U.S. Elections
Allen Dickerson
adickerson at campaignfreedom.org
Tue Jul 19 13:09:14 PDT 2011
I'm agnostic on the broader question which, as Bill points out, raises some
complex questions.
But two points:
Citizens United didn't say the "identity of the speaker doesn't matter." It
said (since we're paraphrasing) that the corporate/associative, as opposed
to individual, identity of the speaker didn't matter.
And it would not be surprising to see the First Amendment applied somewhat
differently to aliens. I defer to the better-informed, but I can think of at
least one case that suggested aliens can be treated differently than
citizens. Two of the aliens in Reno v. American-Arab Anti-Discrimination
Comm. were deported for behavior (membership in the Popular Front for the
Liberation of Palestine) that might have raised First Amendment issues
under Yates, had they been citizens.
Applying the Constitution to aliens is always a tricky (and fact-intensive)
business. I'm not sure a standalone talking point from Citizens United
changes that.
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 3:40 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
I don't mean to be dense, but "which facts?" What would make the interest
sufficiently important? What kind of danger could such foreign spending
play in your view?
On 7/19/2011 12:36 PM, Bill Maurer wrote:
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 <mailto:law-election at uci.edu>
<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-pakista
ni-agent-for-making-political-contributions-in-us>
<http://firstread.msnbc.msn.com/_news/2011/07/19/7112067-fbi-arrests-pakista
ni-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-19137
877>
<http://us-code.vlex.com/vid/contributions-donations-foreign-nationals-19137
877> 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/anal%0d%0ays%0d%0ais.aspx?id=18958>
<http://ww
<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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0thoughts%20on%20th
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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> <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
--
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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