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?