Okay � see when I read �is there anything wrong� or �do you have a problem with� that sound to me like a question about preferences rather than constitutional law.

Anyhow: (1) I think there is an argument that individuals in this country legally should be allowed to spend their own money expressing political preferences. This has NOTHING to do with CU. This to me is a logical extension guaranteeing first amendment rights to people without regard to their immigration/citizenship status.

(2) I see CU as the commonsense extension of the above to groups of people who have organized in the corporate form. Corporations are not people, but the people who make corporations don�t lose rights because they organized as a corporation . . . without MORE.

MORE could be: the corporation is a government contractor/foreign/a public utility/a gaming licensee/a liquor distributor/a brothel/a waste hauling concern in New Jersey/ run by the Mafia/run by people convicted of public corruption crimes. As someone who is not interested in increasing the regulation of political speech, I am loathe to write the playbook for the other side. So you all will have to come up with your own justifications. I�ve done enough for one day.

From: Rick Hasen [mailto:Rick.Hasen@lls.edu]
Sent: Thursday, October 14, 2010 12:00 PM
To: Allison Hayward Gmail
Cc: 'Smith, Brad'; 'Election Law'
Subject: Re: [EL] "Just Wondering Department"

I'm not trying to switch between doctrine and policy preference. The policy preference was made in the U.S. Code, which bars participation by most foreigners in U.S. elections. I'm asking (1) whether that law is constitutional if challenged under the First Amendment and (2) if it is constitutional, how could the Supreme Court square the constitutional analysis with the language of CU that I've flagged. Of course the Court could say that foreign policy is "different," but as even you acknowledged, the government would have to come up with some justification for why it it is in the U.S. national interest to bar this spending. My contention is anything the Court might say on this would be inconsistent with the language of CU. And I'd say that any of Brad Smith's potential ways of distinguishing CU also conflict with what the Court said in CU. Once the Court acknowledges that identity of the speaker sometimes matters, then the edifice of CU begins to crumble.

As to Steve Klein's post about coordination, I'm talking about something different. You should look at Joe Birkenstock's guest post on my blog (http://electionlawblog.org/archives/017103.html), which explains how an outside group can threaten a candidate with spending against it (or contributions to fund spending against it) without running afoul of the coordination rules. Judge Michael made the same point in his dissent in the 4th Circuit Leake case.

Rick

On 10/14/2010 7:13 AM, Allison Hayward Gmail wrote:

. . . as one who thinks the question IS interesting enough to respond to, my frustration is somewhat different.

Rick�s framing of the issue seems to switch between questions of doctrine and questions of policy preference. As a matter of constitutional doctrine, the federal government enjoys more latitude when dealing with foreigners, who are not individuals, not here. Even when �here� the blithe regard shown in FARA and FECA for foreigners, and the tepid review these laws have received in the past, may argue against my doctrinal argument that expenditures by foreigners are entitled to protection. I could lose that argument � I hope I don�t, but there you go. Do these things even have rights as we do?

Which is different from asking � well if the government has power, how should that power be exercised.

From: election-law-bounces@mailman.lls.edu [mailto:election-law-bounces@mailman.lls.edu] On Behalf Of Smith, Brad
Sent: Thursday, October 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.

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
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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