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

Tue Jul 19 19:20:04 PDT 2011

        I just arrived in Ontario (Canada, not California) and, although I have no objection and relatively little interest in the question Rick has posed, I have read the learned debate here with admiration.  Two quick points:

        1. I don't think a statement from Citizens United or any other Supreme Court decision should be taken as the major premise of a syllogism for deciding future cases.  What ought to count as precedent is the decision of the Court (or any court) and the explanation given for the decision.  The terms used in the course of a court's explanation should not be assumed to apply to matters outside the range established by the problem at hand.  The question of whether the next case is "distinguishable" (placed in quotes not for scare purposes but simply to acknowledge that it is the standard term) is at the heart of the common law method and is not determined by the court issuing the earlier decision.  To assume otherwise is to confuse a court with a legislature.

        2. As stated above, I have no objection to Rick's question.  However, it seems to me his headline is quite unjustified.  In his opening message he explained that Citizens United dealt with independent expenditures.  He then said some in the free speech/plutocracy community (as for me, I support plutocracy but have doubts about free speech) have asserted Citizens United should be extended to contributions.  It follows that his question proposes to put those elements of the free speech/plutocracy community to the test, not Citizens United.

             Best,

             Daniel H. Lowenstein
             Director, Center for the Liberal Arts and Free Institutions (CLAFI)
             UCLA Law School
             405 Hilgard
             Los Angeles, California 90095-1476
             310-825-5148

________________________________
From: law-election-bounces at department-lists.uci.edu [law-election-bounces at department-lists.uci.edu] On Behalf Of Rick Hasen [rhasen at law.uci.edu]
Sent: Tuesday, July 19, 2011 11:21 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'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<mailto: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<mailto: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<mailto:law-election-bounces at department-lists.uci.edu> [law-election-bounces at department-lists.uci.edu<mailto:law-election-bounces at department-lists.uci.edu>] on behalf of Kelner, Robert [rkelner at cov.com<mailto:rkelner at cov.com>]
Sent: Tuesday, July 19, 2011 12:38 PM
To: 'rhasen at law.uci.edu<mailto:rhasen at law.uci.edu>'; 'law-election at uci.edu<mailto: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><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
w.firstamendmentcenter.org/analysis.aspx?id=18

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

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%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

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%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%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%20government.%E2%80%9D%0D%0A%0D%0AThe%20conduct%2C%20if%20proven%2C%20is%20clearly%20illegal%20under%20federal%20law.%20%20But%
20is%20that%20federal%2%200law%20unconstitutional%3F%20%20Citizens%20United%20has%20told%20us%20that%20in%20the%20>
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><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<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<mailto:rhasen at law.uci.edu>
http://law.uci.edu/faculty/page1_r_hasen.html
http://electionlawblog.org