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

Tue Jul 19 14:21:09 PDT 2011

The "complete ban" fiction rears it's head again! At least Sean adds the parenthetical "other than what could be done through a PAC" which the majority usually ignored. That exception is itself quite large, since the corporation completely controls the PAC. BEYOND the PAC, though, the corporation could :  communicate with shareholders and executives on any issue, including endorsing candidates; run issue ads talking about candidates and their positions, provided they did not expressly advocate a candidates election or defeat ( which left lots of room for advocacy) ;  campaign for or against ballot measures; invite candidates to appear at their facilities, and urge their election--of of this "banned" activity from supply "gagged" corporations.

Trevor Potter
Sent from my iPad

On Jul 19, 2011, at 4:09 PM, "Rick Hasen" <rhasen at law.uci.edu> wrote:

> 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 <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>
>> Posted on July 19, 2011<http://electionlawblog.org/?p=20587> by Rick Hasen<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> “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> 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
>>  
>>  
>>  
>>  
>> w.firstamendmentcenter.org/analysis.aspx?id=18
>>  
>> 958> 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>.)
>>  
>> [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%20
>> of%20making%20thousands%20of%20dollars%20in%20political%20contributions%20in%20the%20United%20States%20without%20disclosing%20his%20connections%20to%20the%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
>> %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%20con
>> tributions%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
>>  
>>  
>>  
>>  
>>  
>>  
>> e
>> %20foreign%20national%20question%2C%20see%20my%20recent%20Michigan%20piece.%29%0D%0AShare%0D%0APosted%20in%20campaign%20finance%09%7C%20Comments%20Off>
>> Posted in campaign finance<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>
>> 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
>>  
>> -- 
>> 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
> 
> -- 
> 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
> _______________________________________________
> Law-election mailing list
> Law-election at department-lists.uci.edu
> http://department-lists.uci.edu/mailman/listinfo/law-election

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