[EL] Breaking News: Summary Affirmance in Bluman v. FEC

Mon Jan 9 09:23:18 PST 2012

Does anyone have a good summary of existing legislation and/or rules re how
any limits on corporations depending on the nature of foreign investment
impact different politically relevant entities?

On Mon, Jan 9, 2012 at 12:12 PM, Trevor Potter <tpotter at capdale.com> wrote:

> Indeed, could the c4 ( a US entity) use the funds for that purpose without
> even bothering with the transfer?
>
> Sent by Good Messaging (www.good.com)
>
>
>  -----Original Message-----
> From:   Adam Bonin [mailto:adam at boninlaw.com]
> Sent:   Monday, January 09, 2012 11:52 AM Eastern Standard Time
> To:     'Rick Hasen'; JBoppjr at aol.com
> Cc:     law-election at uci.edu
> Subject:        Re: [EL] Breaking News: Summary Affirmance in Bluman v. FEC
>
> Under this ruling, can a 501c4 take contributions from foreign nationals
> (including temporarily resident foreign citizens) and transfer them to a
> SuperPAC making pro-candidate expenditures, or must it segregate out before
> making such a transfer?  Does it depend on whether the foreign national
> knows (or has reason to know) at the time that contributions to such a c4
> may be used for such purposes?
>
>
>
>
>
> Adam C. Bonin
> The Law Office of Adam C. Bonin
> 1900 Market Street, 4th Floor
> Philadelphia, PA 19103
> (215) 864-8002 (w)
> (215) 701-2321 (f)
> (267) 242-5014 (c)
>
> adam at boninlaw.com
>
> http://www.boninlaw.com <http://www.boninlaw.com/>
>
>
>
>
>
>
>
> From: law-election-bounces at department-lists.uci.edu [mailto:
> law-election-bounces at department-lists.uci.edu] On Behalf Of Rick Hasen
> Sent: Monday, January 09, 2012 11:02 AM
> To: JBoppjr at aol.com
> Cc: law-election at uci.edu
> Subject: Re: [EL] Breaking News: Summary Affirmance in Bluman v. FEC
>
>
>
> Jim,
>
> We've been down this road before.  If we engaged in a long enough
> discussion, I would say that you would end up having to concede (though you
> never would) that your concern about these groups affecting U.S. elections
> comes down to an argument about corruption, appearance of corruption, or
> distortion/equality.  Each of these arguments were rejected by SCOTUS in
> the corporate context in CU.
>
> Perhaps we can both agree on this statement: when it comes to the First
> Amendment, sometimes the identity of the speaker does matter.
>
> Rick
>
> On 1/9/2012 7:56 AM, JBoppjr at aol.com wrote:
>
> So President Obama was wrong all along.  I am sure he will appologize for
> his mistake.
>
>
>
> And there is no "doctrinal incoherence," it is perfectly consistent for
> the Supreme Court to hold that there is no compelling interest in
> prohibiting corporate and labor union speech but that there is a compelling
> interest in prohibiting foreign interests from contributing to candidates
> in U.S. elections.  I for one agree that the Red Chinese Army, the Iranian
> government and Hamas can be prohibited from contributing.  Jim
>
>
>
> In a message dated 1/9/2012 10:40:10 A.M. Eastern Standard Time,
> rhasen at law.uci.edu writes:
>
>
> Breaking News: Supreme Court Affirms that First Amendment Not Violated by
> Barring Foreign Individuals from Spending Money (or Contributing) in U.S.
> Elections <http://electionlawblog.org/?p=27557>
>
>
> Posted on  <http://electionlawblog.org/?p=27557> January 9, 2012 7:38 am
> by Rick Hasen <http://electionlawblog.org/?author=3>
>
> As I had hoped <
> http://www.tnr.com/article/politics/98162/citizens-united-foreign-money>
>  and <
> http://www.nytimes.com/roomfordebate/2012/01/05/should-foreign-money-be-allowed-to-finance-us-elections/bluman-v-fec-is-a-trojan-horse>
>  expected <http://electionlawblog.org/?p=27513> , the Supreme Court
> issued a summary affirmance this morning in the  <
> http://www.scotusblog.com/case-files/cases/bluman-v-federal-election-commission/>
> Bluman v. FEC case, in which the lower court had upheld against first
> Amendment challenge the federal law barring foreign individuals (even those
> living legally in the U.S. but who are not permanent residents) from
> spending money on U.S. election campaigns or contributing money to them.
>  (There were no noted dissents.)
>
> As I've explained <
> http://www.slate.com/articles/news_and_politics/jurisprudence/2011/12/the_obama_administration_s_risky_voter_id_move_threatens_the_voting_rights_act.html>
> , this came to the Court on an unusual procedure: an appeal from a
> three-judge court.  A summary affirmance of an appeal (unlike a simple
> denial of a writ of certiorari) does have precedential value.  In other
> words, by today's order, the Supreme Court agreed that the lower court got
> it right (even if it might not necessarily agree on the precise reasoning
> in the case).
>
> Is this ruling consistent with Citizens United v. FEC, the case holding
> that corporations may not be barred from independently spending money in
> U.S. elections?  In Citizens United, the Supreme Court expressly reserved
> the question whether the foreigner spending ban violated the First
> Amendment.  I have argued <
> http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1620576> , however,
> that the logic of Citizens United should have led the Court to strike down
> the foreign spending ban too.  But I also predicted that the Court would
> not do so:
>
> Despite the apparent application of Citizens United's reasoning to the
> question of foreign spending limits, I have little doubt that the Court
> would uphold such limitations even though the foreign spending limit is
> more severe than the corporate limitation. It is an actual ban, as there is
> no PAC alternative for foreigners. As I explain in Part III, at least some
> of the Justices appear to care about public opinion, and the public outcry
> over Citizens United could well pale compared to a Court decision allowing
> unlimitedforeign funds in our elections.206 Indeed, it was probably to
> forestall such an attack after Citizens United itself that the majority
> added those three sentences keeping the issue open.
>
> So how could the Court sustain a law imposing foreign spending limits
> without overturning Citizens United?207 The short answer is through
> doctrinal incoherence. For example, the Court could state that the threat
> from foreign spending influencing U.S. elections is one different in kind
> than that posed by domestic corporate spending, and that when it comes to
> protecting the country from foreign influence, the First Amendment must
> give way. Or the Court could state that barring foreign influence is
> supported by the same interest "in allowing governmental entities to
> perform their functions"  that justifies limitations on some political
> activities of government employees under the Hatch Act,210 an interest the
> Court reaffirmed in Citizens United. As the last Section showed, neither of
> these arguments would be convincing under a literal application of the
> principles of Citizens United, because the arguments are premised on
> corruption, appearance of corruption, or distortion. Most
>  likely, a majority that would make an argument favoring foreign spending
> limits would simply ignore the inconsistent parts of Citizens United and
> move on. In short, there is no reason we should expect a consistent
> application of Citizens United in the context of foreign election spending.
>
> Thanks to the summary affirmance, the Court majority does not have to
> explain its doctrinal incoherence.
>
>  <
> http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D27557&title=Breaking%20News%3A%20Supreme%20Court%20Affirms%20that%20First%20Amendment%20Not%20Violated%20by%20Barring%20Foreign%20Individuals%20from%20Spending%20Money%20%28or%20Contributing%29%20in%20U.S.%20E>
>
> http://www.addtoany.com/share_save#url=http://electionlawblog.org/?p=27557&title=BreakingNews:
> Supreme Court Affirms that First AmendmentNot Violated by Barring Foreign
> Individuals fromSpending Money (or Contributing) in
> U.S.Elections&description=
>
> Posted in campaign finance <http://electionlawblog.org/?cat=10>  |
> Comments Off
>
> --
> Rick Hasen
> Chancellor's 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
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> rhasen at law.uci.edu
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> http://electionlawblog.org <http://electionlawblog.org/>
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> --
> Rick Hasen
> Chancellor's 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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