[EL] Let's Put Citizens United to the Test: Pakistani Agent $ in U.S. Elections
Sean Parnell
sparnell at campaignfreedom.org
Tue Jul 19 14:31:58 PDT 2011
Well, I'll simply say national security does cut it for me, not to mention
the issue of national sovereignty. I'd think you'd be happy to see an area
of general if unenthusiastic agreement between the representative democracy
community and the plutocracy community?
Best,
Sean Parnell
President
Center for Competitive Politics
http://www.campaignfreedom.org
http://www.twitter.com/seanparnellccp
124 S. West Street, #201
Alexandria, VA 22314
(703) 894-6800 phone
(703) 894-6813 direct
(703) 894-6811 fax
From: Rick Hasen [mailto:rhasen at law.uci.edu]
Sent: Tuesday, July 19, 2011 5:26 PM
To: Sean Parnell
Cc: law-election at uci.edu
Subject: Re: [EL] Let's Put Citizens United to the Test: Pakistani Agent $
in U.S. Elections
Let's take the issue of the Soviet Union, which is the one you flag as
giving you a problem. Could you articulate for me what you see as the
problem?
The reason "national security" doesn't cut it for me is that it is
insufficiently specific about how the foreign government would be doing
something to endanger our security through spending money in elections. And
when that interest gets articulated, I think we are back at the same
concerns addressed in CU.
In my article, I argue that all of these arguments to prevent such spending
boil down to a concern about corruption, voter confidence, or distortion of
the electoral process, each of which were reasons the Court rejected in CU
when applied to corporations.
Still Dense in Studio City,
Rick
On 7/19/11 2:18 PM, Sean Parnell wrote:
That's as good an explanation of balance as any I suppose, I was thinking
you were referring to balance in the particulars of the Citizens United
case, when it seems more that you're looking for balance within the much
larger context of the overall campaign finance framework. A reasonable
assessment?
I'm mildly supportive of preserving political speech in America for
Americans (whether individuals or through associational form, obviously),
based on ideas connected to national sovereignty and national security
interests. So while I don't have a problem with the Communist Party USA
offering their views, I do have a bit of an issue with their getting funding
from the Soviet Union during the Cold War. I have a hard time getting worked
up over the issue though, and here I do think your idea of 'balance' has
merit. It's fine if the Economist wants to endorse someone, and I have a
friend married to an Englishman and think it's fine if he contributes to a
candidate (he lives here in the U.S. with his wife). The facts matter, just
as they might in a libel or slander case.
Sean Parnell
President
Center for Competitive Politics
http://www.campaignfreedom.org
http://www.twitter.com/seanparnellccp
124 S. West Street, #201
Alexandria, VA 22314
(703) 894-6800 phone
(703) 894-6813 direct
(703) 894-6811 fax
From: Rick Hasen [mailto:rhasen at law.uci.edu]
Sent: Tuesday, July 19, 2011 5:09 PM
To: Sean Parnell
Cc: law-election at uci.edu
Subject: Re: [EL] Let's Put Citizens United to the Test: Pakistani Agent $
in U.S. Elections
A balance need not be right in the middle in each case. In a balancing of
rights and interests, sometimes state interests are strong enough to trump
first amendment rights (think of Burson v. Freeman) other times not (think
of Bellotti). I have an extensive discussion of how I think the balancing
should take place in the campaign finance context in my 2003 book, The
Supreme Court and Election Law.
Sean, do you have an opinion on the foreign spending in U.S. elections
issue? Or are you agnostic or of "no strong opinion" like your CCP
compatriots?
On 7/19/11 2:02 PM, Sean Parnell wrote:
I'm curious what 'balance' the dissenters struck in Citizens United? I seem
to recall that a complete ban on corporate and union campaign-related
speech, other than what could be done through a PAC (setting aside for the
moment Justice Kennedy's observations that a PAC is not the corporation),
seemed the right 'balance' in their eyes. Which doesn't quite seem to be the
sort of meet-in-the-middle compromise that might be considered a 'balance.'
Sean Parnell
President
Center for Competitive Politics
http://www.campaignfreedom.org
http://www.twitter.com/seanparnellccp
124 S. West Street, #201
Alexandria, VA 22314
(703) 894-6800 phone
(703) 894-6813 direct
(703) 894-6811 fax
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 4:57 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 believe that aliens on U.S. soil have some First Amendment rights, just as
I believe that corporations have some First Amendment rights. But I would
strike the balance the way the dissenters did so in CU and not the way the
majority did. And in my Michigan article I explain why I believe that
foreign spending in elections also may be limited consistent with the First
Amendment.
On 7/19/11 1:54 PM, Smith, Brad wrote:
Yes
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: Rick Hasen [mailto:rhasen at law.uci.edu]
Sent: Tue 7/19/2011 4:51 PM
To: Smith, Brad
Subject: Re: [EL] Let's Put Citizens United to the Test: Pakistani Agent $
in U.S. Elections
was this intended for the list?
came only to me
On 7/19/11 1:45 PM, Smith, Brad wrote:
You may be right. You do believe that aliens have First Amendment rights,
don't you?
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: Rick Hasen [mailto:rhasen at law.uci.edu]
Sent: Tue 7/19/2011 2:50 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 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/analysis.aspx?id=18958> <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>
<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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20independent%20spending%20cannot%20corrupt.%20%20Some%20anti-campaign%20fin
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20folks.%20%20If%20this%20activity%20is%20proven%20against%20the%20Pakistani
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%20under%20the%20First%20Amendment%3F%20%20%28For%20my%20thoughts%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 <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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