Citizens United v. U.S. National Security

Posted by Josh Goodman on January 23, 2010 at 6:33 pm
filed under Uncategorized
Tagged , , , , , ,

This week the Supreme Court handed down its worst, most politicized ruling in a decade in Citizens United v. Federal Election Commission. The 5-4 decision held that campaign finance laws that restrain how much money corporations may spend on advertising to support candidates are unconstitutional. The ruling — supported by the 5 right-wing-leaning justices — flies in the face of long-standing judicial precedent, numerous campaign finance laws passed with bipartisan support, and the will of the people to limit the already considerable role of corporate interests in government. It has been rightly skewered as a politicized decision designed to benefit Republicans and pro-business interests. If only that were the extent of the trouble.

As this article explains and Justice Stevens pointed out, the case ”would appear to afford the same protection to multinational corporations controlled by foreigners as to individual Americans.” Foreign-owned companies operating in the U.S., like Citgo, an oil company owned by the Hugo Chavez’s Venezuelan government, can now apparently pump money without limits into the U.S. elections of their choice. Indeed, it would seem — absent Congressional action — there is nothing to stop all kinds of foreign corporations — from Saudi Arabia’s Bin Laden Group to Chinese state-owned enterprises — from opening up U.S. subsidiaries primarily for the purpose of supporting candidates in U.S. elections.

Whether or not these foreign corporations would choose to support Republican candidates (as the conservative justices must imagine), Democratic candidates, or Manchurian candidates remains to be seen. The idea that these foreign entities can now claim such an outsize role in the U.S. electoral process is bizarre, and demands to be rectified. Yet the ruling is based on the supposed First Amendment rights of corporations, and the First Amendment’s free speech protections generally apply to foreigners in the U.S. just like they apply to U.S. citizens. There are, however, some exceptions. The Court’s precedents hold that the U.S. may bar foreigners from entering the country based on their speech, and possibly may deport them for their speech as well, even where similar speech by U.S. citizens would be constitutionally protected.

Congress should immediately pass a law limiting the rule announced in Citizens United to corporations whose beneficial owners are 100% U.S. citizens. Since that would exclude virtually all publicly traded corporations from taking advantage of the ruling (because essentially all public corporations have foreign shareholders), it would effectively neutralize the Court’s decision until the Court has an opportunity to consider the question of foreign ownership. Judicial review — the act of a court overturning a law enacted by Congress and the President — should be used sparingly. Under the view most commonly held by legal scholars, courts should only overturn acts of Congress as needed in very limited circumstances, such as to protect the rights of minorities or to ensure proper representation in the political process. The Citizens United ruling perverts that traditional theory, going against precedent to endorse an expansive First Amendment interpration that provides wealthy corporations — not exactly disenfranchised and excluded from the political process as it is – with a vast new role in our elections. Congress and the President need to act quickly to limit this ruling from its potentially far-reaching consequences.

Sphere: Related Content

  • Share/Save/Bookmark

4 comments

RSS / trackback

respond

  1. Jeff

    on January 28, 2010 at 5:05 pm

    Check out this newspaper story: http://online.wsj.com/article/SB10001424052748704194504575031584009869108.html?mod=WSJ_hps_MIDDLESecondNews

    In pertinent part: ‘The [Supreme Court] decision left in place—for the moment, at least—restrictions that some say are already enough to ensure against foreign influence on U.S. elections. Under current campaign law, foreign companies and individuals can’t route money through U.S. subsidiaries to influence elections. The subsidiaries can fund campaign advertisements with profits from their U.S. operations.’

    Do you think the reporter’s mistaken?

  2. Josh Goodman

    on January 28, 2010 at 8:12 pm

    Jeff,

    I am certainly not an expert on campaign finance law, but my understanding is that foreign corporations — as defined in the law referenced in this article — refer to companies incorporated in or with a principal place of business in a foreign jurisdiction. Now that the general ban on corporate spending for advertisements has been rejected, it seems it would be possible for a foreign corporation to create domestic corporate structures that don’t meet that definition, but that they can still dominate (even if just through a sort of wink and a nod). Second, even if we were only dealing with U.S. subsidiaries of foreign corporations set up in a bona fide transparent fashion, and these were limited to spending from their U.S. profits to fund U.S. operations, this might not amount to much of a restriction if we are talking about a big foreign company with profitable U.S. operations. For example, if Citgo can only spend profits from its U.S. operations on U.S. elections, isn’t that money just fungible with other money Citgo has globally? If the total amount they would spend is the same, I’m not sure how relevant it is that their profits came from U.S. sales.

  3. Kylie Batt

    on May 12, 2010 at 7:46 pm

    Запомни это раз и навсегда!…

    The ruling — supported by the 5 right-wing-leaning justices — flies in […….

  4. Diamondweb-686

    on May 17, 2010 at 9:33 pm

    Diamondweb-686…

    гляньте, какой сайт по бизнесуhttp://cook495.ru/, много полезного и интересного там найдете…