Foreign Nationals, Electoral Spending, and the First Amendment

Article excerpt

"[I]t is inherent in the nature of the political process that voters must be free to obtain information from diverse sources in order to determine how to cast their votes."

--Justice Anthony Kennedy, Citizens United v. FEC, 130 S. Ct. 876, 899 (2010).

In January 2010, the United States Supreme Court ruled in Citizens United v. FEC that corporations and unions may use their general treasury funds to purchase advertising that explicitly calls for the defeat or election of federal or state candidates. (1) The decision opened the door to unlimited express advocacy advertisements by corporations and unions, provided that the ads are "independent expenditures"--that is, not coordinated with a campaign or candidate. (2) Before the decision, corporations and unions could fund express advocacy advertisements only through use of separate, segregated funds, called Political Action Committees (PACs), created with voluntary contributions. (3)

The Court also eased restrictions on so-called "electioneering communications" by corporations and unions--that is, broadcast advertisements that clearly mention a federal candidate and that air within sixty days of a general election or thirty days of a primary election. (4) Although such advertisements were allowed before Citizens United, they could only be funded by PACs, and had to comply with other federal restrictions. (5)

The decision unleashed a torrent of commentary--some of it scathing (6)--and immediately led to calls for new legislation and even a constitutional amendment. (7) The debate over the decision is hardly over, and its practical implications likely cannot be fully or accurately assessed until several election cycles have passed.

One of the ideas raised by critics of Citizens United is that Congress might further limit the ability of foreign corporations to make campaign expenditures. (8) Existing laws already limit foreign speakers (both individual and corporate) from making campaign contributions to candidates for state or federal office, or contributions to American political parties, (9) though the laws exempt permanent resident aliens and American subsidiaries of foreign corporations. Existing laws also prohibit foreign nationals--which include individuals who are not lawful permanent residents, foreign governments, corporations, residents, and political parties "organized under the laws of or having [their] principal place of business in a foreign country" (10)--from funding the operation of a PAC. (11) Post-Citizens United, because the law exempts American subsidiaries of foreign corporations from these restrictions, these subsidiaries need not use a PAC to expend funds on a domestic election.

Extending the existing restrictions on foreign national electoral spending, some argue, is a way to cabin the influence of many large corporations over elections, given the degree to which many of them have extensive foreign connections. (12) For example, Congress may seek to expand the definition of a "foreign corporation" to include corporations that are more than twenty-percent foreign-owned. (13) Alternatively, Congress may seek to regulate corporations that are incorporated in the United States, but that might be described as subject to substantial foreign influence. (14)

Would such restrictions be constitutional?

The majority in Citizens United expressly declined to rule on whether existing legislation based on a corporate speaker's foreign status is constitutional, (15) though Justice Stevens warned in his dissent that the opinion weakened the support for such speaker-based distinctions. (16) If Justice Stevens is correct that Citizens United casts doubt on the constitutionality of this existing legislation, then expansions of restrictions on campaign spending by foreign nationals almost certainly would be unconstitutional.

This Article analyzes whether foreign speakers can be restricted from making political campaign contributions or expenditures in ways that nonforeign speakers cannot. …