20 Oct Why Not Allow Foreign Spending in U.S. Elections?
Richard Hasen writes in Slate:
There are of course good reasons to limit foreign money in the electoral process—it’s just that none of them are compatible with the Supreme Court’s First Amendment absolutism. Unlike American citizens, foreign individuals, governments, and associations are unlikely to have allegiance to the United States. A foreign entity may even have military or economic interests adverse to the United States. Foreign individuals or groups could support candidates to curry favor, or at the least, to secure preferential access to elected officials. Even putting aside the possibility of corruption and the sale of access, would we 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? The answer is obviously no, whether you sit on the Democratic or Republican side of the aisle. And foreign spending on U.S. elections could undermine public confidence in the electoral process.
It’s not quite as obvious to me that foreign spending should be rejected out of hand. The principled defense is that foreigners are affected by US elections, too. (One can even fashion a pretty respectable argument on that basis that foreigners should be allowed to vote in US presidential elections, though of course that would be a lot less practical.) The pragmatic one is that foreigners already wield substantial, direct influence in US politics, so this would be more a matter of degree than kind. So long as there were adequate disclosure (a big if, I understand), we wouldn’t have to worry too much about foreign spending, either. It’s not as if “this message was approved by the government of China” would help many candidates.
That said, I agree with Hasen that the Court is unlikely to uphold a free speech right for foreigners in this context. A doctrinal lever is at hand with Sugarman v. Dougall and progeny, upholding discrimination by states against aliens in the context of “political functions.” This isn’t a very principled jurisprudence, but it looks to me to be easily transposed.
In any event, if there are Americans willing to support positions that are those of the foreigners – without reaching the threshold of agent etc – then the foreigners have indirect influence. For example, an American company that has substantial assets in foreign countries and understands the way the foreign governments/entities/people view US topics. Delaware incorporation would provide allegiance but allegiance does not mean that there is an American set of ideas. One can imagine a convergence of interests vision for a corporate or individual who is American to seek to influence the election in a manner that is also beneficial to the foreign entity.
But what do I know.
Best,
Ben
Long-time reader, first-time poster (sort of a lurker). Anyways….
While I think full disclosure of campaign contributions from corporate/union sources would be good no matter where they’re from, it wouldn’t solve the problem many have with foreign influence in elections. The main reason – voters would have to pay attention to what is disclosed. Maybe everyone on here would pay close attention to which foreign companies, governments, and other groups are funding a particular candidate, but I’m not so sure that’s the case with the rest of the voting public. For many people, then, funding disclosure would be white noise.
While there may be good reasons for foreign-based company (or a foreign individual, for that matter) to have a voice in our democratic process, I think that allowing such a change would be a negative one. The increased importance of having a large campaign warchest moves campaign contributions closer to being like a vote; allowing foreign companies and individuals to make direct contributions would therefore dilute Americans’ control over who becomes America’s leader. That’s not to say having the most money means a candidate is going to win (see Mitt Romney circa ’08 and Meg Whitman this year), but it certainly helps.
Thanks, Brett, for the comment. I agree that disclosure would create a lot of noise with respect to domestically-funded advertising, but I think candidates would have enough incentive to highlight foreign spending on behalf of their opponents to make voters pay attention. As for money being the equivalent of (or better than) a vote, I agree — but as I say in the post, I don’t really have a problem with that.
Many foreign citizens probably see this in their own countries as a natural occurrence already. The US allocates millions of US taxpayer dollars each year to the National Endowment for Democracy (NED) and US Agency for International Development’s (USAID) democracy promotion programs for the apparent purpose to influence other countries’ electoral systems. The US doesn’t want foreign influence over US elections, but is quite content to flex its muscles in order to influence foreign elections. The examples include Panama, Cuba, Honduras, Iran, and Venezuela, even Western and Eastern Europe. It becomes a difficult argument for the US to try to deny foreign spending on US elections when it is a common practice by US entities to try to influence foreign elections.
However, the problem is that the world is interdependent today, and elections in foreign countries can have huge impacts on the US. Additionally, elections in the US definitely affect the rest of the world. Therefore, maybe it is the correct time to allow the world to participate in all elections and simply allow disclosure.