Just to pile on, I can’t fathom what governmental
interest
is served by a federal law prohibiting individuals legally
within the united
states from spending their own money to advocate the
election or defeat of
candidates. But foreign exchange students, highly trained
workers here
under the H1-B program, and others would be breaking federal
law by spending
money to advocate for or against a school board member or
city council
candidate who represents them
States have the latitude to allow noncitizens to
vote (if they
so desire) in their elections. But they don’t have the
latitude to
allow them to spend money in politics? How does this make
sense?
Allison
(BTW this is my own opinion – I am not expressing
a view
of the CCP, or any other group with which I may be
associated).
In taking up Rick's question from yesterday
about foreign
election speech, I don't fit the threshold criterion: I'm most
definitely no
Floyd Abrams. I also wouldn't say that I've "celebrated" Citizens
United. And I won't try to distinguish foreign
spending from
the Court's Citizens United approach to corporate
spending: I think
Rick's absolutely right that one logically leads directly to
the other.
As I say in a new piece:
"Expect Noncitizens United in the near future."
But with great respect, I will suggest that the answer to the
normative question about
whether we'd
"really want the close and intense battle for a majority in
the House of
Representatives to be influenced by money from a foreign
government,
corporation, or millionaire" may not be quite so obvious as
the Slate
piece suggests. I want American taxpayers deciding American
elections. But there may well be federal candidates with
specific
proposed approaches to international trade, or climate
control, or
international human rights, or immigration, or international
security, or a
host of other international issues. And it may be that
prospective
foreign business partners or security allies or the
International Committee of
the Red Cross or particular noncitizen individuals would have
something to say
on those issues that would be informative to American voters.
De
Tocqueville had some things to say about the way we run
democracy around here
that are still pretty interesting.
Make no mistake, I think there are troubling derivative
effects of
substantially increased political spending, particularly if
deployed in a way
that misleads or misinforms. There are serious concerns about
corruption,
and I think it's a big mistake to equate, as the Court did
(and as Larry Lessig
pointed out),
officials'
responsibilities to voters with their responsibilities to
contributors (and
though the Court denied the possibility, to those who spend
independently in
outsized sums). More spending by more entities, including
spending
by foreign entities, increases these concerns, and there are
an awful lot of
foreign entities with an awful lot of both money and
influence. If the
underlying question is a policy matter, it's a challenge to
figure out how to
get the potential upside without the potential downside, and
the diversity of
noncitizen incentives to influence American elections makes
the calculation
unquestionably trickier. But acknowledging that no voter
wants Manchurian
Candidate-ish elections secretly controlled by foreign powers,
I'm not sure that
the case against all other foreign speech regarding US
elections is quite so
one-sided as reflected in much of the discussion thus far.
Justin
--
Justin Levitt
Associate Professor of Law
Loyola Law School | Los Angeles
919 Albany St.
Los Angeles, CA 90015
213-736-7417
justin.levitt@lls.edu
ssrn.com/author=698321
On 10/12/2010 4:42 PM, Rick Hasen wrote:
Just Wondering Department
Is anyone (perhaps Floyd
Abrams?) who has celebrated Citizens United
going to step up and
take issue with my arguments and
argue in favor of the unconstitutionality of limits on
foreign spending
in elections? Or offer a persuasive way of distinguishing
limits on foreign
spending from the reasoning in CU barring limits on corporate
spending?