According to USA Today, a Turkish religious movement may have donated hundreds of thousands of dollars to congressional and presidential candidates during the past several years. If true, such donations are blatantly illegal: federal law bans foreign nationals from making political contributions, whether directly or indirectly,” in connection with a federal, state, or local election. It bans contributions made directly t candidates, but also to political committees, and ban using that money to fund certain types of campaign advertisements.
Courts have been supportive of these bans. Even the Supreme Court in Citizens United, which was generally dismissive of much campaign finance regulation, left the bans on foreign money untouched. And when the Supreme Court had the opportunity to strike down the bans in a post-Citizens United case called Bluman v. FEC, it upheld them without comment or dissent.
But the Court has been noticeably absent on reasoning: after all, if it violates the First Amendment to discriminate on the basis of the identity of the speaker, as the Court said inCitizens United, on what basis does it allow the law to discriminate on the basis of the nationality of the speaker? It can’t be that foreign nationals have no First Amendment rights: that’s been routinely rejected and, even if they did lack such rights, American citizens have a First Amendment right to listen to or read such speech (can you imagine the Government trying to ban Harry Potter because it was written by a Brit?).
Even the esteemed First Amendment expert Floyd Abrams can’t put together a convincing distinction (fast forward to minute 43, although the whole talk is interesting).
What’s left is the conclusion that, even if a foreign national can speak, there’s something fundamentally different about allowing a foreign national to spend on campaigns. There’s a recognition that such spending—especially when significant in amount—might corrupt elected officials and render them loyal to foreigners and not, as they should be, loyal to the American voters. And there’s a recognition that that concern is a legitimate basis for the Government to regulate foreigners’ political spending, even if it cannot regulate foreigners’ political speech. And, finally, there’s a recognition that that spending can corrupt even if it is not in the form of a contribution given directly to a candidate. Foreign money may not be used by a political committee—even those that do not ostensibly coordinate with candidates—and may not go to fund supposedly independent campaign advertisements because we recognize that such spending may still bend the ear of our elected officials.
It all seems so clear when we’re talking about money flowing in from abroad. Yet, for reasons unexplained, the Court muddled it when it thought about money flowing in from a board room. How does a $100 contributed by a foreigner to a super PAC corrupt, but a $1,000,000 donated by a corporation to that same super PAC not? If spending is fundamentally different from speech when it comes from a foreign national, why is that distinction not similarly important when the actor is an American corporation?
We’re still waiting on that answer.