Would A Ban On Foreign "Speech" Pass Constitutional Muster?

By Big Tent Democrat, Section Constitution
Posted on Tue Jan 26, 2010 at 11:25:36 AM EST
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ABC reports:

Rep. Chris Van Hollen said Monday that Democrats are crafting legislation to prevent foreign owned corporations from funneling money into American political campaigns [. . .] "There's a big danger that the decision opens the door to foreign owned corporations indirectly spending millions of dollars to influence the outcome of U.S. elections through their American subsidiaries," Van Hollen, D.-Md., told ABC News. "The American people should be deeply concerned. This decision raises all sorts of questions."

Forget for a moment the difficulty of determining what corporation is "foreign-owned," would such a restriction be constitutional under Citizens United? Not given the "First Amendment protects speech, not the speaker" logic of Citizens United. Of course this contortion will not be difficult for the radical and reactionary Roberts Court, but it certainly would shoot a hole through the decision's logic, such as it is.

Speaking for me only

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Would A Ban On Foreign "Speech" Pass Constitutional Muster? | 35 comments (35 topical)

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Does this mean the Governator of Caulifornia (5.00 / 1) (#17)
by Ellie on Tue Jan 26, 2010 at 12:41:27 PM EST

... could be baaack as Prezinator some day?

Given the fact that he's at 25% in the polls (none / 0) (#18)
by domer5000 on Tue Jan 26, 2010 at 12:53:03 PM EST

not likely


MoDo's apparently got Ahnold on Speed Dial (none / 0) (#25)
by Ellie on Tue Jan 26, 2010 at 01:40:38 PM EST

(Sensitive stomach warning applies)

The Naked and the Dead by MAUREEN DOWD, NYTimes, January 23, 2010
I wondered how the Governator of California felt about the crumbling Kennedy legacy in Massachusetts and the rocketing Scott Brown, who has promised to scuttle the health care bill.
"In Hollywood, people are made a star overnight," Arnold Schwarzenegger said, calling from L.A. on Friday. "What he has done is spectacular. Party leaders are telling him: `You could be the next Obama. Two years in office and then you run.' [...]
On the cusp of the special election for Kennedy's seat, when I interviewed Arnold at his favorite Beverly Hills lunchtime haunt, Caffé Roma, the governor was already confident that Martha Coakley was going down.
"This is a major disaster -- the Democrats are in a major panic mode," he said, chuckling with satisfaction, leaning back in his black sheepskin-lined jacket and smoking a big stogie. "They're going in the dead bed. It will be a punishing blow for the Democrats in 2010."
About the cinematically handsome Brown, who campaigned in a GMC pick-up truck and once posed in the buff in Cosmo, Arnold ruminated: "In acting, they always tell you, `Don't just talk. Don't just let words come out of your mouth. Go and get inside the heart.' I think the guy has that ability." [Me: What kind of cultural tundra do we live in when Ahnold can give acting tips unchallenged?]
Recalling his own 2003 campaign, when Bill Clinton and other Democratic stars came West to boost Gray Davis -- improbably casting Arnold as David rather than Goliath -- he predicted that sending Obama to Boston would backfire ...
Tea-party-style voter revolts are just part of "the rhythm" of American politics, he said.
"I've been the victim of that myself," he observed. "People change very quickly, and you can't complain because that's the way people are. Work somewhere in a soup kitchen or something if you can't take the pressure. ...
Did Obama make a mistake, using all his capital on health care?
"He let other people do the negotiating," Arnold replied. "If you want to travel around, if you want to put fires out all over the world, O.K., but you've got to be there for those negotiations."
James Cameron's Terminator likes to look at the big picture, or the "master shot," as he puts it. And his own master shot shows him jumping from bodybuilding champ to top movie star to governor, scaling every peak "with tunnel vision." He overcame movie focus groups that said, as he recalled, "Jeez, he scares the hell out of me, I feel like I'm in Germany and the Nazis are back."
He speculated that Democrats and Republicans were too scared of him to pass a law allowing immigrants to run for president, but if they had, he would have jumped in -- "because it's there" [...]

Given how much air time the "birthers" movement has had in attacking Obama, I wouldn't count the Prezinator prospect out. I'm numb beyond shock.


Well, there's that old (none / 0) (#29)
by jimakaPPJ on Tue Jan 26, 2010 at 02:19:06 PM EST

Constitution thingee that comes into play.

He speculated that Democrats and Republicans were too scared of him to pass a law allowing immigrants to run for president, but if they had, he would have jumped in -- "because it's there

Evidently neither Dowd or Arnold knows about it.


: The Bush era gutted so much of the Constitution (none / 0) (#32)
by Ellie on Tue Jan 26, 2010 at 02:39:33 PM EST

... unilateral warmongering, dishonoring treaties, warrantless spying on its own citizens, FISA, that if they wanted a foreign-born national as President, notably Arnie, it would be done and done.
Maybe Ariana Huffington would run against him.

Can't (none / 0) (#19)
by Emma on Tue Jan 26, 2010 at 12:53:13 PM EST

Not born in the U.S.


Well, maybe he can incorporate (5.00 / 3) (#21)
by BobTinKY on Tue Jan 26, 2010 at 12:56:01 PM EST

and run as Schwarzenegger, Inc., a California-based corp.


: Life begins (5.00 / 3) (#22)
by domer5000 on Tue Jan 26, 2010 at 12:57:51 PM EST

at incorporation

: A Division of AmeriCo n/t (none / 0) (#26)
by Ellie on Tue Jan 26, 2010 at 01:41:57 PM EST

Even if it was... (none / 0) (#1)
by magster on Tue Jan 26, 2010 at 11:31:51 AM EST

... couldn't the foreign corporation just gift its money to one of its American subsidiaries or some shell corporation enacted solely to churn out propoganda favorable to that foreign corporation? Such a prohibition seems impossible to enforce in the short timeframes of an election.

No subsidiary necessary (none / 0) (#2)
by waldenpond on Tue Jan 26, 2010 at 11:36:23 AM EST

Why should they need to go through a subsidy? There are no borders when it comes to free speech. Foreigners have the right of free speech in this country. It will be impossible to separate out US versus foreign dollars. If this is a matter of free speech, money from foreign individuals should no longer be barred from contributing to any candidate in the US any longer.


: It's impossible (none / 0) (#4)
by Emma on Tue Jan 26, 2010 at 11:40:48 AM EST

to separate "Federal" money from "State" money for purposes of "abortion funding". It hasn't stopped Congress.

By definition (none / 0) (#15)
by BobTinKY on Tue Jan 26, 2010 at 11:56:14 AM EST

any subsisidiary is owned at least in part if not 100% by the foreign parent corporation.


Federal law prohibits foreign nationals (none / 0) (#3)
by domer5000 on Tue Jan 26, 2010 at 11:38:18 AM EST

from making contributions to federal or local candidates, one of the few provisions of FECA that applies at the state and local leval. Why would it be different for foreign owned corporations?

Spending is not donating (5.00 / 1) (#5)
by Big Tent Democrat on Tue Jan 26, 2010 at 11:40:56 AM EST

and money=speech (none / 0) (#12)
by BobTinKY on Tue Jan 26, 2010 at 11:51:33 AM EST

War is peace, etc etc


Fair enough (none / 0) (#20)
by domer5000 on Tue Jan 26, 2010 at 12:55:05 PM EST

but the point remains that courts have found an interest sufficiently strong to justify bans on contributions by foreign nationals, limits on expenditures would also be justified.


not if expenditures are "speech" (none / 0) (#23)
by BobTinKY on Tue Jan 26, 2010 at 12:57:52 PM EST

which apparently they are.


And that didn't keep (none / 0) (#28)
by jimakaPPJ on Tue Jan 26, 2010 at 02:10:14 PM EST

foreign donations away from Obama.

Standards, double, etc., etc.


Not aware of any FEC actions on this (none / 0) (#31)
by domer5000 on Tue Jan 26, 2010 at 02:32:19 PM EST

do you have evidence of this, or is this a birther offshoot.


: For starters (none / 0) (#33)
by jbindc on Tue Jan 26, 2010 at 02:45:47 PM EST

his foreign-born aunt who was living illegally in Boston gave him money, that he eventually had to refund....
Just because there's not an FEC action doesn't mean it didn't happen....

Free speech (none / 0) (#6)
by waldenpond on Tue Jan 26, 2010 at 11:42:30 AM EST

The Supreme court determined the personhood of corporations and that money is free speech. Foreign nationals are entitled to free speech in this country. It seems it would be difficult under the Court's ruling to be able to block foreign nationals any longer.


: That is the beauty (none / 0) (#16)
by BobTinKY on Tue Jan 26, 2010 at 12:05:54 PM EST

this approach highlights the absurdity of the Court's view that money=speech and corporations are persons protected by the First Amendment.
Laws against foreign campaign donations enjoy broad-based support. Now, thanks to Roberts et al, foreign interests can spend unlimited amounts to influence US elections, including naming candidates supported or opposed by name. According to conservatives coporations are "associations" of people comprising management, employees, customers etc. Well, they might be foreign persons.
Nothing wrong with being foreign, but non-US nationals should not be allowed to, directly or indirectly, financially contribute to the election or defeat of candidates in US elections. Difficult or not, the issue will split the GOP nativist base from its big business portion.

Unlike foreign nationals, corporations (none / 0) (#9)
by inclusiveheart on Tue Jan 26, 2010 at 11:49:39 AM EST

do not have to enter our labyrinthine immigration system in order to establish "residency" here. They can just set up a corportate office and they're in.

I do not really see how anyone can prevent foreign companies from influencing our politics or anyone else's politics - if there is such a thing as a foreign company anymore in this world where multi-nationals exist in their own world apart from domestic governments - they are all foreigners really - few if any of the biggies are driven by any sense of nationalism - they're driven by market potential and that's really all.

So, if Obama runs our economy into the ditch and Americans fall into total poverty, then maybe they'll leave our politicians alone - maybe that's Obama's 11-dimensional chess move here - cut all government spending except the foreign wars, give all of the money at the Treasury to the multi-nationals, leave Americans in a heaping mess of poverty and disenfranchisement and then there will be no ethical challenges in our democratic government because it won't be worth buying any of our politicians' votes. lol

It is a circuitous route to draining the swamp, but hey, it probably would work after everyone who has the money and influence has gotten every last natural resource and anything else that isn't nailed down out of this country and under their corporate control.


The majority: (none / 0) (#7)
by andgarden on Tue Jan 26, 2010 at 11:42:43 AM EST

4.
We need not reach the question whether the Government has a compelling interest in preventing foreign individuals or associations from influencing our Nation's political process. . . Section 441b is not limited to corporations or associations that were created in foreign countries or funded predominantly by foreign shareholders. Section 441b therefore would be overbroad even if we assumed, arguendo, that the Gov- ernment has a compelling interest in limiting foreign influence over our political process. See Broadrick, 413 U. S., at 615.

Stevens FN 51:

The Court all but confesses that a categorical approach to speaker identity is untenable when it acknowledges that Congress might be allowed to take measures aimed at "preventing foreign individuals or associations from influencing our Nation's political process." Ante, at 46-47. Such measures have been a part of U. S. campaign finance law for many years. The notion that Congress might lack the authority to distinguish foreigners from citizens in the regulation of electioneering would certainly have surprised the Framers, whose "obsession with foreign influence derived from a fear that foreign powers and individu als had no basic investment in the well-being of the country." Teachout, The Anti-Corruption Principle, 94 Cornell L. Rev. 341, 393, n. 245 (2009) (hereinafter Teachout); see also U. S. Const., Art. I, §9, cl. 8 ("[N]o Person holding any Office of Profit or Trust . . . shall, without the Consent of the Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State"). Professor Teachout observes that a corporation might be analogized to a foreign power in this respect, "inasmuch as its legal loyalties neces sarily exclude patriotism." Teachout 393, n. 245.

are you suggesting (none / 0) (#8)
by cpinva on Tue Jan 26, 2010 at 11:43:12 AM EST

the roberts' court is (big gasp!) activist? say it a'int so!

good question. under citizens united, how could it not be protected?

: What difference does it make? (none / 0) (#10)
by BobTinKY on Tue Jan 26, 2010 at 11:49:53 AM EST

either SCOTUS upholds such a ban or protect the right of "foreigners" to participate in US elections, to the consternation of the GOP base.
It's called divide and conquer the electorate and the GOP has been successfully doing it successfully for decades. It is hard to win elections when your economic policies only benefit 10% of the population.

It's a silly approach (none / 0) (#11)
by robotalk on Tue Jan 26, 2010 at 11:50:42 AM EST

We know in many contexts the courts have ruled that if you are here, you have Constitutional rights, ie people can't be imported and treated as slaves just because they aren't citizens.

There are approaches to this issue that are sensible and might work, but this isn't one of them. (Can't write at length, but it has to do with how much a restriction actually has the intent and in fact chills speech. For instance, a cop writing me a traffic ticket which costs me money I wanted to contribute to a political campaign chills my speech, but clearly we would not prohibit the govt.'s right to ticket traffic violators as a violation of the 1st Amendment).

: It's a political winner (none / 0) (#14)
by BobTinKY on Tue Jan 26, 2010 at 11:52:30 AM EST

regardless of the legal merits or lack thereof

Instead of funding terrorist activities, (none / 0) (#13)
by inclusiveheart on Tue Jan 26, 2010 at 11:51:39 AM EST

AQ should just start hiring some lobbyists.

Given that the point of terrorism . . . (none / 0) (#24)
by rea on Tue Jan 26, 2010 at 01:26:47 PM EST

. . . is to influence public opinion ("the propaganda of the deed"), there is a sense in which they are doing this already.


: Yeah, but one is illegal and the other (none / 0) (#30)
by inclusiveheart on Tue Jan 26, 2010 at 02:28:07 PM EST

apparently is a-okay these days. Might as well take the path of least resistance.

Hmm.. Just thought about this (none / 0) (#27)
by Dan the Man on Tue Jan 26, 2010 at 02:05:09 PM EST

Who is or is not a foreign person is defined by Congress (because Congress makes immigration/citizenship laws) subject to the provisions of the 14th amendment stating people born in the USA are citizens. Since that part of the 14th amendment doesn't apply to corporations, Congress can declare all corporations foreign because corporations are people subject to US immigration/citizenship laws. And if Congress can ban political spending in the US by foreign corporations or foreign people, then it can ban all political spending via that declaration.

: true enough. (none / 0) (#34)
by cpinva on Wed Jan 27, 2010 at 12:02:36 AM EST

however, it wouldn't be the foreign corporation itself making the donation, it would be its wholly owned, native born subsidiary. the native born subsidiary, being a "person" in its own right, wouldn't be subject to the 14th amendment proscription, and would be free to donate to its heart's content.

And what about the Israeli Lobby? (none / 0) (#35)
by SeeEmDee on Wed Jan 27, 2010 at 08:20:38 AM EST

I can just see it now: being told on TeeVee by Israeli Lobby mouthpieces in commercials to tell my Reps and Sin-a-tors to give even more money to Tel Aviv. As if they didn't get the lion's share of 'foreign aid' already.

Corps are bad enough, but now foreign governments will be lobbying American voters (which is just what the CIA has been accused of doing to citizens in foreign countries for decades). This is insane. I feel like I'm living in a Heinlein short story when everything goes crazy.