[EL] Let's Put Citizens United to the Test: Pakistani Agent $ in U.S. Elections
Smith, Brad
BSmith at law.capital.edu
Tue Jul 19 13:47:14 PDT 2011
By the way, I thought we'd sort of agreed some time ago that we would call people the "reform community" and they would call us the "free speech community."
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: Bill Maurer [mailto:wmaurer at ij.org]
Sent: Tue 7/19/2011 3:20 PM
To: Rick Hasen; 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
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-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://ww <http://www.firstamendmentcenter.org/analysis.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> .)
[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%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%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>
<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%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%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>
<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>
<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>
<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>
<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/>
--
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/>
-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://webshare.law.ucla.edu/Listservs/law-election/attachments/20110719/65af4df6/attachment.html>
View list directory