Did Citizens United Make Foreign Spending on Elections Legal?

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Monday, October 11, 2010 at 6:30 pm

Elections Law Professor Richard Hasen weighs in obliquely on the current hysteria surrounding accusations that the U.S. Chamber of Commerce is accepting (and potentially using) foreign funding to sponsor U.S. election activities, and comes to the disturbing conclusion that the Supreme Court’s Citizens United decision — and the way it was reasoned by the majority — doesn’t present a compelling reason why such forms of foreign influence shouldn’t be allowed to influence domestic elections:

The court opened the money spigot with a kind of First Amendment absolutism: 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. [...]

Rather than countering with an argument as to why foreign spending might be different, the majority just punted: “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 court said it would decide another time whether the government could demonstrate a “compelling interest in limiting foreign influence over our political process.”

There are lots of reasons, of course, why we wouldn’t want foreign companies or governments spending heaps of money to influence our elections, notes Hasen, and the Court will probably find some convoluted way to argue as much in the future without reneging on the logic of its decision in Citizens United. But the truth of the matter is that if one should only care about the message, not the messenger, of political spending, it’s hard to reason why foreign entities should be treated any differently.

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