Attacking Citizens United based on "foreign" contributions is a
terrible idea both strategically and doctrinally. Strategically,
unless foreign corporations are alter egos of large contributors, the
corporations don't really take own characteristics (especially rights)
from their shareholders, so the great weakness of Citizens United is
actually starting to be shored up by Obama et al admitting (it seems)
that corporations really do somehow get rights from shareholders....
There's also little basis to think that foreign corporations are a
greater threat than domestic corporations, and no action is
forthcoming on that front. The fact of the matter is that large
corporations that are multinational in nature routinely threaten to
outsource operations and jobs if their political and investment
demands aren't met. The "domestic" corporations aren't exactly loyal
to the USA - they are out to make a profit and that's their only
concern (in the main). Every large corporation that is multinational
or at that level of size is, in the sense of its lack of patriotic
loyalty to stay with the USA, a "foreign corporation." It doesn't
make sense to attack some foreign corporations, but not others...
On 10/13/10, Justin Levitt <Justin.Levitt@lls.edu> wrote:
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 <http://ssrn.com/abstract=1676108>: "Expect
/Noncitizens United /in the near future."
But with great respect, I will suggest that the answer to the normative
question <http://www.slate.com/id/2270662/> 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
<http://bostonreview.net/BR35.5/lessig.php>), 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
<http://www.yalelawjournal.org/the-yale-law-journal-pocket-part/constitutional-law/citizens-united-and-its-critics/>?)
who has celebrated /Citizens United/ going to step up and take issue
with my arguments <http://www.slate.com/id/2270662/> and argue in favor
of the *un*constitutionality 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?