Last month, the Supreme Court decided Citizens United v. Federal Election Commission, 558 U.S. ___ (2010), holding that the First Amendment prevents the government from limiting political speech in the form of corporate funding of a feature-length film. The government cannot restrict certain disfavored speakers like corporations. Political speech is important to democracy regardless of the speaker. Specifically, the Court struck down a provision of the Bipartisan Campaign Reform Act of 2002, Pub. L. No. 107-155 (2002) (commonly, the McCain-Feingold Act), prohibiting the broadcast by corporations and unions of election-focused information in the days before a presidential primary or election. Justice Kennedy’s majority opinion retained the Act’s relevant disclosure requirement and proscription of direct donations by corporations and unions to candidates.
The decision sparked substantial reaction in the days following its release, as people waded through the fractured decision (basically, 5-4 against the speech restriction, 8-1 in favor of maintaining the disclosure requirement, with five different opinions authored– Kennedy for the majority, Chief Justice Roberts concurring, Justice Scalia concurring, Justice Stevens concurring in part and dissenting in part, and Justice Thomas concurring in part and dissenting in part). President Obama added a new twist to the conversation when he weighed in on the decision in his first State of the Union Address, less than a week after the Court decided the case. With a majority of the justices present, sitting in the front row, the President noted his “due deference to separation of powers” and opined:
Last week, the Supreme Court reversed a century of law to open the floodgates for special interests – including foreign corporations – to spend without limit in our elections. Well I don’t think American elections should be bankrolled by America’s most powerful interests, or worse, by foreign entities. They should be decided by the American people, and that’s why I’m urging Democrats and Republicans to pass a bill that helps to right this wrong.
(Emphasis added.) At this moment, television cameras panned the audience, catching Justice Alito mouthing “not true,” apparently in response to the President’s assertion that “foreign corporations” are among those “special interests” for which the decision opened “the floodgates.” SCOTUSblog‘s Lyle Denniston highlights a relevant portion of the majority opinion:
That section said: “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.” The opinion then cited a provision of federal law[.] In essence, that provision bars any “foreign national” from making any direct or indirect contribution of money or anything of value “in connection with any federal, state, or local election[.”]
The clear implication of the phrasing is that the Court, in the future, might well uphold such a ban by finding that the Government did, indeed, have a strong interest in keeping foreign money out of U.S. campaigns, at any level of government.
The Court’s statement that it “need not reach the question” hardly “open[s] the floodgates.” At very most, it suggests that a majority of the Court is willing to overturn that provision, but a fair reading yields the simple position that the Court is not addressing questions it does not have to answer and is clarifying the scope of its holding. This is a common, widely accepted practice of the Court’s. Congressional Democrats nevertheless sprung to action. Senator Al Franken‘s office said that the President’s statement, quoted above, “urged…legislative action.” In explaining his decision to introduce restricting legislation, the release stated: “Nothing in our current laws, however, explicitly prohibits foreign companies from creating American subsidiaries or getting control of American companies and using them to flood the airwaves in support of their preferred candidates.” This assertion contradicts Denniston’s statement, quoted above.
Whether the first-term Senator or the journalist who has covered the Court for fifty years is stating the law accurately, a more interesting question persists: should we exclude foreign corporations from influencing American elections?
One starting place is to wonder whether exclusion is possible to a meaningful extent. Not only do many foreign corporations have a substantial presence in the U.S., many companies people think of as “American” actually are foreign-owned (e.g., Anheuser-Busch, Ben & Jerry’s, Trader Joe’s, 7-Eleven, Firestone Tires). If one is concerned about the influence of individual foreigners, the scope is even wider, expanding to include American corporations run by people born abroad (e.g., PepsiCo).
Others have speculated on the complexity of this subject, given globalization realities:
In a world characterized by high levels of political and economic interdependence, one wonders whether there can be any pure cases of domestic political change, untouched by significant external influences. The exceptions are likely to overwhelm any generalized prohibition of intervention based on the importance of allowing people to work out their own salvation.
Charles R. Beitz, Political Theory and International Relations 87 (Princeton University Press 1999) (1979).
Even if it were possible to craft legislation that could separate foreign corporations from domestic ones as a matter of identification, is this a desirable, justifiable distinction? The combination of the Constitution’s Article II § 1 and Twelfth Amendment limit eligibility of the offices of president and vice president to “natural born Citizen[s],” but no other office is so limited. Reasonable justifications exist for this restriction, but do they apply to a restriction on foreign influence in election campaigns? Is there a different basis for justifying the proposed exclusion? Or is it simply an easy way for those opposed to corporate spending in campaigns generally to cut back on a (possibly substantial) portion of it?
Justified or not, the issue of restricting foreign influence on domestic elections matters to people on both sides of the aisle. Before the recent legislative initatives by Democrats mentioned above, the Republican National Committee accused Obama of failing to disclose campaign donations from abroad, and foreign celebrities like Sir Elton John have involved themselves in U.S. presidential campaigns.
Finally, if we are concerned about foreign influence on domestic elections, should we be concerned about interstate influence on state and local elections?
There are reasonable intuitions as to why we would want to steel our elections from foreign influence, even if it it is a practice that Americans have engaged in abroad. Setting aside golden rule and reciprocity concerns about political intervention, the failure to enunciate a basis for exclusion impairs this debate.