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?