Subject: Re: [EL] [POSSIBLE SPAM] RE: "Just Wondering Department"
From: Joseph Birkenstock
Date: 10/14/2010, 9:47 AM
To: "Smith, Brad" <BSmith@law.capital.edu>, Election Law <election-law@mailman.lls.edu>

If we're going to bicker (again) over what the President said, let's at least lay it out there for people to judge for themselves.  According to the transcript on the White House webpage (at http://www.whitehouse.gov/the-press-office/remarks-president-state-union-address), the remark in question was "With all due deference to separation of powers, last week the Supreme Court reversed a century of law that I believe will open the floodgates for special interests –- including foreign corporations –- to spend without limit in our elections."  [Emphasis added.]  If anyone thinks that's a misquote or inaccurate transcription I would welcome other links.
 
I emphasized "will open" and "spend" above since I think those quotes conclusively disprove Brad's unfair recapitulation of the President's remark below (and in his National Review piece, which I had missed) in two ways.  First, Obama never claimed CU changed the law on contributions, but rather on "spend[ing]" which it quite obviously did.  And second, "will open" (future tense) proves that Obama was referring to the future effect of CU as precedent and not the immediate effect of the mandate from the case itself, a point on which it still seems no one can articulate a reasoned disagreement - at least with respect to foreign nationals within the US.  I don't think that's good policy, but I didn't catch anything in Brad's contribution below that shows how it can be refuted without a "refine[ment]" of CU's reasoning, "over time." 
 
(BTW, I'm not sure what Brad means by "the way Supreme Court opinions are written" - unless it's that the Court's opinions are usually internally consistent, and that the way this one sets 441e to the side while employing a rationale that plainly undermines it shows that this one, well, isn't.  But my hunch is that isn't what Brad meant...)
 
Anyway, I'm reluctant to do much counter-fisking here (aside from refuting the two glaring points above) since I worry that I'm detracting from the much better question Rick asked initially.  Namely, "Why would it be in the U.S. foreign policy interest not to allow such foreign government spending?" 
 
For whatever it's worth, Obama wasn't referring to foreign governments at all, so, given CU as precedent, what's the rationale for restricting expenditures by foreign corporations - even those outside the US? 
 
 
 

From: Smith, Brad
Sent: Thu 10/14/2010 11:36 AM
To: Election Law
Subject: Re: [EL] [POSSIBLE SPAM]  RE:  "Just Wondering Department"

 
 
From: Joseph Birkenstock [mailto:JMB@Capdale.com]
Sent: Thu 10/14/2010 10:55 AM
To: Smith, Brad; Election Law
Subject: [POSSIBLE SPAM] RE: [EL] "Just Wondering Department"

Wow, the goalposts have *really* moved since January.  I had the impression lots of people were worried about foreign nationals (governments as well as businesses & individuals) trying to influence American elections, not least President Obama in his state of the union address.  And he was pretty loudly derided for the alleged falsity of that observation at the time - just today, in fact, Justice Alito was reported to remark that he doesn't think he'll attend next year's SOTU. 
 
** These statements by the President were false.  It remains against the law for foreign nationals to contribute to U.S. elections.  Citizens United explicitly did not change that.  This discussion has revolved around whether a future case might change that.  Moreover, in addition to being false, I do believe that the President's statements are not really intended seriously, but merely as political theatre.
 
So, I take you to be saying below first that maybe foreign expenditures wouldn't be so bad since foreign nationals can already lobby and permanent residents can already contribute. 
 
** No, rather, as Justin Levitt pointed out the other day, it is not some unmitigated evil (even if, as Justin, one opposes the idea).  Indeed, if I recall, Joe, you were counsel at the DNC during the 1990s at a time when numerous Democrats were arguing that issue ads funded by foreign individuals and entities were perfectly OK.  So whatever you personally believe, surely you are aware that this is not a new argument.  (I'll note that I wrote an op-ed in the Columbus Dispatch just before the 1996 elections defending the Democrats and the Clinton administration against Republican charges of illegally raising foreign funds.  "Foreign Contributions Taint Democrats", Columbus Dispatch, Nov. 1, 1996, p. A8. (The headline, which I don't write, is misleading as to the article's content))
 
**My point is that we have long had foreign involvement in U.S. policy and elections by foreign entities.  Only in the past 10 months has this become a hot issue, and only because of a case that specifically did NOT change the law in that area but which did, in the eyes of many, threaten Democratic Party political power.   Moreover the focus has not been on areas where foreign individuals and entities actually are able to legally influence U.S. policy and elections, but on the one area where non-permanent resident aliens are legally prohibited from influencing elections, even after CU. This leads one to question whether or not there is a considerable overreaction on the part of CU critics, and in at least some cases bad faith. 
 
 (I happen to think it would be bad.)  And second, if it is bad, that maybe the CU rationale actually will need to be "refine[d] over time" to find a basis to restrict foreign expenditures - but that's *quite* a change from the reaction the President got from most CU fans, and from at least one justice in the CU majority. 
 
**Again, that is because the President's statement was false.  He was not discussing some future case and holding, but rather the holding in a particular case.  Now who is moving the goalposts?
 
 (Now, to be fair Brad, I really don't recall you personally reacting against Obama's SOTU remark with much vigor or resentment, but of course feel free to correct me if I'm wrong.) 
 
** You are wrong.  http://www.nationalreview.com/corner/193894/president-wrong-i-citizens-united-i-case/bradley-smith
 
More to the point, as I read the below, you seem to agree with Rick (and with me) that as a question of law the CU rationale - if squarely applied as articulated - would at least protect the right of a foreign national within the US to make independent expenditures, which seems to suggest to me that you think Obama was right, at least as to foreign nationals within the US, and that as a policy matter that's the right place to come out. 
 
** No on point one because I don't think that the Supreme Court writes opinions that way, and I think it takes a tendentious reading of the opinion to get there. No on point two, I think Obama was making an intentionally, knowingly false statement about the Supreme Court decision for political gain.
 
But that perspective is also very different than the reaction most people seem to be having about foreign money funding political expenditures now.  Why else the furor *against* the foreign money allegations against the Chamber? 
 
**Actually, among voters I have seen no furor over the Chamber.  In the chattering classes (me included), the furor has been over the demogoguery and the "guilty until proven innocent" logic of David Axlerod and other leading members of the majority party.
 
Bradley A. Smith
Josiah H. Blackmore II/Shirley M. Nault Designated Professor of Law
Capital University Law School
303 E. Broad St.
Columbus, OH 43215
(614) 236-6317

 
 
________________________________
Joseph M. Birkenstock, Esq.
Caplin & Drysdale, Chtd.
One Thomas Circle, NW
Washington, DC 20005
(202) 862-7836
www.capdale.com/jbirkenstock
*also admitted to practice in CA






From: Smith, Brad
Sent: Thu 10/14/2010 9:55 AM
To: Election Law
Subject: Re: [EL] "Just Wondering Department"







Well, one of the easiest things would be for the court to simply refine its statements.  Buckley, for example, says that independent expenditures don't corrupt, but then Austin says that well, maybe they do if it's a corporation, because it's a "different type" of corruption, and lots of people seem happy to live with that - indeed they're mad as hell that the Court decided that was wrong (and of course, many also said that in fact Buckley was wrong, too.)  Rick should be happy that nobody wants to spend intellectual energy to take up his challenge - perhaps it suggests that this really isn't much of a threat.  In any case, in election law, as in most areas of law, the Court is often called upon to refine its positions over time.  Not to trivialize this endeavor, but it's much like the parent who explains the reason for a rule in the context of the situation before him or her - when a new situation arise, exceptions to the rule, and the reasons for those exceptions, are then added.  The Court does this all the time.  


 


Now, the reality is that few people are really much worried about the North Korean government trying to influence our senate races.  Some perspective: foreign enterprises, individuals, and governments are allowed to lobby the government.  U.S. subsidiaries of foreign companies have, for years, operated PACs that not only make expenditures but contributions.  Permanent Resident Aliens have a right to contribute and to make expenditures.  


 


In any case, the Court has several directions it could go if and when that case ever presents itself.  As to foreign governments in particular, the easiest solution is to uphold prohibitions on government spending - something most states already have with domestic governments and I have never seen challenged by any "reform" advocate. The reason for this prohibition is not because governments are "corporations," as one prominent scholar has tried to argue, but because they are government.  For a hole host of reasons, we have long recognized that governments are not treated the same as the private sector for First Amendment purposes or, indeed, for most Constitutional purposes.  This would be tied in to the explicit foreign policy arguments Allison suggested earlier.


 


More broadly, one approach, which I would think is perhaps the best but the Court is unlikely to take - is simply to note that the First Amendment, like much of the Constitution, is a restraint on government power.  It is a part of our governing system based on the belief that it is a dangerous threat to liberty and republican government to allow the government to limit speech that may be made for the purpose of criticising the government.  The Court may nevertheless draw a line at non-resident foreign participation, arguing that that does not serve the same purpose of the First Amendment of preventing government abuse of power to stay in office.  This would fit well with the emphasis several justices, most notably Scalia, have placed on the free exchange of political ideas as necessary to prevent members of congress from trying to insulate themselves from political challenge.  


 


More likely, the Court might place more emphasis on the autonomy interest of the First Amendment, which has certainly been present in its cases, from Buckley on down.  Here the Court would emphasize the individual rights aspect to the First Amendment, and it is long recognized that the protections of the Constitution, in most cases, extend to persons within our borders.  This would also be perfectly consistent with Citizens United.


 


The Court may simply adopt the approach typified by Justice Stevens in many areas outside of campaign finance - it's an easy case and we don't need to get too caught up in doctrine.  See e.g. Burnham v. Superior Court, 495 U.S. 604 (1990) (Stevens, J. concurring in the judgment).  


 


None of these approaches would require overturning any precedents.   Making an easy case hard is not really necessary - which as I suggested at the outset may be why I and others aren't terribly interested in pouring intellectual energy into it.


 




Bradley A. Smith


Josiah H. Blackmore II/Shirley M. Nault Designated Professor of Law


Capital University Law School


303 E. Broad St.


Columbus, OH 43215


(614) 236-6317


http://www.law.capital.edu/Faculty/Bios/bsmith.asp






From: election-law-bounces@mailman.lls.edu on behalf of Rick Hasen
Sent: Wed 10/13/2010 11:16 PM
To: Election Law
Cc: Justin Levitt
Subject: Re: [EL] "Just Wondering Department"



Since no one seems to want to step up to argue under CU's logic for a right of the North Korean government to give unlimited contributions to try to swing a Senate race in Nevada (though perhaps someone wants to defend it so long as there is adequate disclosure, contrary to my example?), I'd like to hear from someone who celebrates CU as to what the problem is with such spending compared to unlimited corporate spending in such circumstances.

Allison offered the idea of deference on foreign policy, and maybe that's how the Supreme Court would get out of this box, but I don't think it is that easy.  Why would it be in the U.S. foreign policy interest not to allow such foreign government spending?  If the idea is that we don't want foreign governments to have disproportionate influence over the composition of the U.S. Senate, that seems to go against CU's rejection of the antidistortion rationale.  If the idea (a la Joe Birkenstock) is that we worry about the possibility that Senate candidates might toe the line when threatened by North Korea with contributions to an IE campaign against the candidate, that seems to go against CU's statement that independent spending cannot corrupt.  Not sure what else the argument could be that doesn't violate CU's statement that the identity of the speaker does not matter in the campaign finance context.

Rick


On 10/13/2010 1:54 PM, Rick Hasen wrote: 

What if the North Korean government could give the money to a group, Americans for a Strong America, without earmarking it for Angle, but suggesting that would be a great place to spend it?  Then we'd have the spending but it would not be disclosed.  I find that very troubling.

What I mean by a "CU-perspective" is the stuff that the Supreme Court said in CU about the First Amendment.  >From my Slate piece: The five-justice conservative majority repeatedly stated that when it comes to political speech, the identity of the speaker does not matter, that more speech is always better, that the public cares only about the message, not the messenger, that even millions of dollars in "independent" spending cannot corrupt a candidate, and that the public won't lose confidence in the electoral process because of these independent gobs of money.


On 10/13/2010 1:47 PM, Allison Hayward wrote: 

I was really picking the low fruit in my initial note.  I just CAN"T fathom what the state interest is in prohibiting any resident of a jurisdiction from having a say about a candidate from that jurisdiction.  I can't believe that's constitutional. 




Now - what about foreign corporations - aren't they just "groups" of individuals?  (That's what we at CCP have been saying)  Again, easy answer if those individuals are here, it seems to me.





Is it a harder answer if those individuals aren't here?  As a matter of constitutional law, it is easier to deprive foreign "persons" of asserted rights when they are outside the US.  So, it follows that legislatures (including Congress) get more discretion.  When the issue involves foreign governments (or corps that are intimately connected with governments), potential foreign affairs concerns pop up, than definitely the courts have seen fit to provide Congress and/or the President with more discretion to regulate.





From a "CU perspective" - whatever that is - the speech rights of groups are constitutionally protected, and the mere fact that a group is incorporated doesn't abrogate that right.  But when you add to the mix foreign relations issues that have always received greater deference, you don't necessarily get the same answer.





I say "necessarily" because the government still needs a good enough reason to regulate.  But I suspect that, were the issue raised, courts would find the foreign affairs justification sufficient.





The way you phrased your question inquires whether I "have a problem" with foreign governments funding electoral communications.  As a matter of personal preference, sure.  If I saw North Korean funding ads supporting Sharon Angle, I'd worry about Sharon Angle.  If the funding came from Great Britain, not so much.  But my own reaction to a situation isn't really a very sound way to approach constitutional analysis, is it?  





Or if it is, let's go ahead and make me Queen of America.  I'd like that.





AH













On Oct 13, 2010, at 3:53 PM, Bill Maurer wrote:









And it appears that all this foreign money in our elections is starting to pay off:


 


Oct. 12, 2010


Texas County Ballots Wrongly Have Flag Of Chile


Absentee Ballots In Texas County Wrongly Display Flag Of Chile


 (AP)  AUSTIN, Texas (AP) - Election officials in Atascosa County are correcting a mistake on absentee ballots to remove the flag of Chile, which is similar to the Texas banner. Voter Troy Knudson noticed the error. Knudson told the Austin American-Statesman that election officials congratulated him "for preventing future Atascosa voters from seeing the flag mistake."

The flags of Texas and Chile both have a white stripe on top and a red one on the bottom, plus a single star in the middle of a blue field.

In the Chilean flag the blue is only in the top left corner. The Texas flag displayed the blue all along the left side.

Current elections administrator Janice Ruple blames a previous worker for the mixup and says "We just never caught it."

The election is Nov. 2.



To channel my inner Axelrod, is there any proof that this was not some plot by Santiago and its sympathizers in America?  Can we expect pro-Chilean policies from Atascosa Countypoliticians, like replacing bottles of water at County Council meetings with an impertinent Chilean Cab? 


 










From: election-law-bounces@mailman.lls.edu [mailto:election-law-bounces@mailman.lls.edu] On Behalf Of Rick Hasen
Sent: Wednesday, October 13, 2010 12:02 PM
To: Allison Hayward Gmail
Cc: 'Justin Levitt'; 'Election Law'
Subject: Re: [EL] "Just Wondering Department"


 


Allison,

In my Michigan paper, I express at least some agreement with you as to non-citizen residents.  What's your opinion on non-residents?  How about on foreign governments?  (I think Paul is right that the focus on foreign v. domestic corporations is different, given how much foreign money and influence is already involved in U.S. corporations.)

I know you are not speaking for CCP.  But when I debated with Steve Simpson at the Institute for Justice, he expressed discomfort about spending by foreign governments on U.S. elections.  I never got a satisfactory answer as to why this spending would be problematic from a CU perspective.  I also recall (though my memory may be faulty) that someone from CCP in the audience disagreed with Steve on this point, and saw no problem with a foreign government spending money to influence our elections.

Rick

On 10/13/2010 11:25 AM, Allison Hayward Gmail wrote:


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).


 






From: election-law-bounces@mailman.lls.edu [mailto:election-law-bounces@mailman.lls.edu] On Behalf Of Justin Levitt
Sent: Wednesday, October 13, 2010 1:44 PM
To: Election Law
Subject: Re: [EL] "Just Wondering Department"


 


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?



 
 
 
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-- 
Rick Hasen
William H. Hannon Distinguished Professor of Law
Loyola Law School
919 Albany Street
Los Angeles, CA 90015-1211
(213)736-1466
(213)380-3769 - fax 
rick.hasen@lls.edu
http://www.lls.edu/academics/faculty/hasen.html
http://electionlawblog.org/




-- 
Rick Hasen
William H. Hannon Distinguished Professor of Law
Loyola Law School
919 Albany Street
Los Angeles, CA 90015-1211
(213)736-1466
(213)380-3769 - fax 
rick.hasen@lls.edu
http://www.lls.edu/academics/faculty/hasen.html
http://electionlawblog.org/

_______________________________________________
election-law mailing list
election-law@mailman.lls.edu
http://mailman.lls.edu/mailman/listinfo/election-law




-- 
Rick Hasen
William H. Hannon Distinguished Professor of Law
Loyola Law School
919 Albany Street
Los Angeles, CA 90015-1211
(213)736-1466
(213)380-3769 - fax 
rick.hasen@lls.edu
http://www.lls.edu/academics/faculty/hasen.html
http://electionlawblog.org/






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