[EL] Breaking News: Summary Affirmance in Bluman v. FEC
Lowenstein, Daniel
lowenstein at law.ucla.edu
Mon Jan 9 10:10:17 PST 2012
This is a fair point. Given CU and Bluman, it would seem there is room for legislators to try to draw lines distinguishing foreign from domestic corporations. How feasible that would be in practice, I do not know nearly enough about corporate matters to guess.
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: Douglas Carver [dhmcarver at gmail.com]
Sent: Monday, January 09, 2012 10:06 AM
To: Lowenstein, Daniel
Cc: Rick Hasen; JBoppjr at aol.com; law-election at uci.edu
Subject: Re: [EL] Breaking News: Summary Affirmance in Bluman v. FEC
>From Dan's email: "The question of whether foreigners can contribute
or spend in American elections seems to me quite different from
whether domestic corporations can do so, so I am skeptical of taking
abstract propositions from the Citizens United opinion and applying
them in deductive manner to a quite different question."
In this age of transnational corporations, with boards of directors
from many nations, profits generated globally from varieties of global
enterprises, profits being shifted overseas or to overseas shelters to
protect the corporations from being taxed in the United States, is
their a functional difference between a "foreigner" and a "domestic
corporation"? Is Chrysler, 58.5% owned by Fiat SpA, a foreign
corporation or a domestic one? As Jim wrote, lawyers are supposed to
make fine distinctions, but surely we all are familiar with the
concept of a distinction without a difference.
Douglas
On Mon, Jan 9, 2012 at 10:50 AM, Lowenstein, Daniel
<lowenstein at law.ucla.edu> wrote:
> One of the benefits of retirement from election law is I do not feel much obligation to take up Rick's quite reasonable challenge. Were I to take the time to think the whole matter through, I think I'd probably say, first, that I believe that usually the only good ground for regulating the political speech that is enabled by campaign contributions and expenditures is to avoid corruption and conflict of interest. Even there, careful limits are necessary. But "usually" is not "always." I think the United States can say that American elections are for Americans, just as I think Canadians can say their elections are for Canadians, etc. I have no doubt that elaborating on that proposition would be a lengthy and complex enterprise, against which I plead retirement.
>
> 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: Rick Hasen [rhasen at law.uci.edu]
> Sent: Monday, January 09, 2012 9:38 AM
> To: Lowenstein, Daniel
> Cc: JBoppjr at aol.com; law-election at uci.edu
> Subject: Re: [EL] Breaking News: Summary Affirmance in Bluman v. FEC
>
> Dan,
> As you know I find this approach completely unsatisfying. It is fine
> for you to say you will exercise judgment, and that history is relevant,
> but unless you can articulate the reason why you favor or disfavor a
> view of the First amendment allowing foreigners to spend in U.S.
> elections, I have no way of judging the merits of your position.
> Rick
>
> On 1/9/2012 9:21 AM, Lowenstein, Daniel wrote:
>> My view on this differs from Rick's because of my belief in a jurisprudence that draws more on factual similarities and dissimilarities than on abstract propositions. (See my article on the commercial speech doctrine, 56 U. Cincinnati LR 1205 (1988)). The question of whether foreigners can contribute or spend in American elections seems to me quite different from whether domestic corporations can do so, so I am skeptical of taking abstract propositions from the Citizens United opinion and applying them in deductive manner to a quite different question. To put it another way, I believe the function of the courts is to decide cases, not to legislate elaborate doctrinal webs of rules, and that stare decisis should be understood accordingly. Jim reaches a similar view by doctrinal means by emphasizing the compelling state interest issue and pointing out that they need not be resolved identically in the two cases.
>>
>> Part of the fact-oriented approach, especially in constitutional law, should be history. There is strong historical support for banning contributions by foreigners. Also by corporations. That cuts in favor of upholding both kinds of regulations. But in the case of corporations, the core ban historically has been understood to apply centrally to contributions more than expenditures. Of course, the distinction between contributions and expenditures was not very salient before Buckley v. Valeo.
>>
>> To the extent that Rick argues strenuously that the Court's position is incoherent in these cases, it is also relevant that Austin, which CU overruled, was the clearest instance of inconsistency (or incoherence) in the constitutional law of campaign finance, as it plainly conflicted with the logic of Citizens Against Rent Control v. Berkeley. In the words of the title of an article I wrote, Austin more than any other campaign finance case, made the mosic patternless. CU, whatever its other pros and cons, restored coherence to a far greater degree, in my judgment, than whatever incoherence is caused by CU in conjunction with Bluman.
>>
>> Because my approach calls for judgment in each case, it does not dictate results. Personally, I am quite satisfied that Bluman is correct and I am also quite satisfied that NRWC, which upheld the constitutionality of a ban on contributions by corporations, was correct, despite the view of many at the time that it was incoherent in conjunction with Bellotti. CU seems to me a very close call.
>>
>> Finally, I see no need for the testiness between Rick and Jim. Each is defending a perfectly respectable jurisprudential position and doing so capably.
>>
>> 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 JBoppjr at aol.com [JBoppjr at aol.com]
>> Sent: Monday, January 09, 2012 8:46 AM
>> To: rhasen at law.uci.edu
>> Cc: law-election at uci.edu
>> Subject: Re: [EL] Breaking News: Summary Affirmance in Bluman v. FEC
>>
>> I understand that this is a fine legal distinction but, as lawyers, we are trained to make fine distinctions. But even though it is a fine distinction, it is a very important analytical point that you seem to disagree with me on.
>>
>> First, I do agree with you that "Perhaps we can both agree on this statement: when it comes to the First Amendment, sometimes the identity of the speaker does matter." But it does in a way much different than you assert in your writings about this. The First Amendment does apply to all speakers, so a ban on foreign contributors is a severe burden on First Amendment rights. This is what the Court was saying when it said that the First Amendment applies regardless of the speaker.
>>
>> But the next step in the analysis is: is there a compelling governmental interest which justifies this severe burden on First Amendment rights? As I have said, it is perfectly consistent to reject the Austin distortion ruling that justified bans on corporate and labor union speech, but say that foreign governments, foreign terrorist organist ions and armies, etc. are different than you everyday American corporation such that the foreign interests can be ban. So your claim of a "doctrinal incoherence" is, in my view: "incoherent." You have set up a straw man and have been having fun knocking it down.
>>
>> And finally, I can assure you that, if I were to agree with you on a point, as I have on occasion, I would be happy to acknowledge it. Jim
>>
>> In a message dated 1/9/2012 11:02:40 A.M. Eastern Standard Time, rhasen at law.uci.edu writes:
>> 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<mailto: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<mailto: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 January 9, 2012 7:38 am<http://electionlawblog.org/?p=27557> 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 Bluman v. FEC<http://www.scotusblog.com/case-files/cases/bluman-v-federal-election-commission/> 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.%20Elections&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
>> 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/>
>>
>>
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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<mailto:rhasen at law.uci.edu>
>> http://law.uci.edu/faculty/page1_r_hasen.html
>> http://electionlawblog.org<http://electionlawblog.org/>
>
> --
> 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
> _______________________________________________
> Law-election mailing list
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> http://department-lists.uci.edu/mailman/listinfo/law-election
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