The Constitutional Rights Of Foreign Individuals And Corporations

[T]he Supreme Court reversed a century of law that I believe will open the floodgates for special interests -- including foreign corporations -- to spend without limit in our elections. I don't think American elections should be bankrolled by America's most powerful interests, or worse, by foreign entities. They should be decided by the American people. And I'd urge Democrats and Republicans to pass a bill that helps to correct some of these problems. - President Obama on the Citizens United decision.

Glenn Greenwald writes:

[I]t has become one of the most pervasive myths in our political discourse: namely, that the U.S. Constitution protects only American citizens, and not any dreaded foreigners. [. . .] That is blatantly false, and anyone making that claim -- as Susan Collins and so many others have -- is either extremely ignorant or extremely dishonest

Justice Alito and many conservatives have taken issue with President Obama's statement about Citizens United. Perhaps their views are rooted in the false myth Greenwald alludes to. In his dissent in Citizens United, Justice Stevens wrote:

If taken seriously, our colleagues’ assumption that the identity of a speaker has no relevance to the Government’s ability to regulate political speech would lead to some remarkable conclusions. Such an assumption would have accorded the propaganda broadcasts to our troops by “Tokyo Rose” during World War II the same protection as speech by Allied commanders. More pertinently, it would appear to afford the same protection to multinational corporations controlled by foreigners as to individual Americans: To do otherwise, after all, could “‘enhance the relative voice’” of some (i.e., humans) over others (i.e., nonhumans). Ante, at 33 (quoting Buckley, 424 U. S., at 49).51 [. . .] In short, the Court dramatically overstates its critique of identity-based distinctions, without ever explaining why corporate identity demands the same treatment as individual identity. Only the most wooden approach to the First Amendment could justify the unprecedented line it seeks to draw.

[FN 51] The Court all but confesses that a categorical approach to speaker identity is untenable when it acknowledges that Congress might be allowed to take measures aimed at “preventing foreign individuals or associations from influencing our Nation’s political process.” Ante, at 46–47. Such measures have been a part of U. S. campaign finance law for many years. The notion that Congress might lack the authority to distinguish foreigners from citizens in the regulation of electioneering would certainly have surprised the Framers, whose “obsession with foreign influence derived from a fear that foreign powers and individuals had no basic investment in the well-being of the country.” Teachout, The Anti-Corruption Principle, 94 Cornell L. Rev. 341, 393, n. 245 (2009) (hereinafter Teachout); see also U. S. Const., Art. I, §9, cl. 8 (“[N]o Person holding any Office of Profit or Trust . . . shall, without the Consent of the Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State”). Professor Teachout observes that a corporation might be analogized to a foreign power in this respect, “inasmuch as its legal loyalties necessarily exclude patriotism.” Teachout 393, n. 245.

(Emphasis supplied.) Justice Stevens' point, if anything, is understated. Consider the issue of a determining whether a corporation is foreign or domestic. What level of ownership would make a corporation "foreign?" What happens when a corporation either adds or sheds foreign ownership? Do First Amendment rights disappear?

And what of foreign individuals in the United States? We know there are bans on contributions to political campaigns but can there also be restrictions on independent expenditures? If so, why? How do you determine whether an independent expenditure is campaign related or issue related?

Justice Stevens compares the restrictions struck down in Citizens United to the familiar "time, place and manner" restrictions well known in First Amendment jurisprudence. Interestingly enough, such restrictions can apply to anyone, including American citizens.

The majority in Citizens United wrote:

Speech is an essential mechanism of democracy, for it is the means to hold officials accountable to the people. See Buckley, supra, at 14–15 (“In a republic where the people are sovereign, the ability of the citizenry to make informed choices among candidates for office is essential”). The right of citizens to inquire, to hear, to speak, and to use information to reach consensus is a precondition to enlightened self-government and a necessary means to protect it.

(Emphasis supplied.) Of course more important than actually speaking is actually voting. Corporations, as we all know, do not have the right to vote. Indeed, it is not clear that corporations are "citizens" as the word is understood constitutionally. As Justice Stevens noted, to follow the majority's logic, corporations should be afforded the right to vote.

The Citizens United majority postied that:

Prohibited, too, are restrictions distinguishing among different speakers, allowing speech by some but not others. See First Nat. Bank of Boston v. Bellotti, 435 U. S. 765, 784 (1978). As instruments to censor, these categories are interrelated: Speech restrictions based on the identity of the speaker are all too often simply a means to control content. Quite apart from the purpose or effect of regulating content moreover, the Government may commit a constitutional wrong when by law it identifies certain preferred speakers. By taking the right to speak from some and giving it to others, the Government deprives the disadvantaged person or class of the right to use speech to strive to establish worth, standing, and respect for the speaker’s voice. The Government may not by these means deprive the public of the right and privilege to determine for itself what speech and speakers are worthy of consideration. The First Amendment protects speech and speaker, and the ideas that flow from each. [. . .] We find no basis for the proposition that, in the context of political speech, the Government may impose restrictions on certain disfavored speakers. Both history and logic lead us to this conclusion.

The logic described above of course applies not only to domestic corporations but also to foreign corporations and individuals. Indeed, while Citizens United majority notes that corporations have been afforded First Amendment rights, so to have foreign individuals. Yet like foreign individuals, restrictions have been place on these First Amendment rights for a long period of time - and yet the Nation has survived.

Not surprisingly, the Citizens United majority avoided the question of restrictions on foreign individuals and corporations:

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. Cf. 2 U. S. C. §441e (contribution and expenditure ban applied to “foreign national[s]”). Section 441b is not limited to corporations or associations that were created in foreign countries or funded predominantly by foreign shareholders. Section 441b therefore would be overbroad even if we assumed, arguendo, that the Government has a compelling interest in limiting foreign influence over our political process.

This bit of legerdemain ignores the elephant in the room - the difficulty of determining when a corporation is subject to foreign influence, because of ownership, control or even financial considerations. Indeed, it is not clear how the Court could issue such a far-reaching decision and leave unresolved the issue of whether to government can restrict foreign speech and what measures it can take to do so. Surely once the Court decided to reach out and decide issues that were neither before it on the record not necessary to decide to dispose of the case, it may as well have gone the full distance.

Imagine a law enacted by Congress now that reimposed the stricken restrictions upon "corporation that have any foreign ownership." Well, that would capture I imagine just about every public traded corporation. Would such a restriction be constitutional? Under Citizens United, it should not be. But the Citizens United majority ducked the question. After reaching out so brazenly to decide questions not before it.

In the end, Citizens United is not likely to be the last word on this issue - it has created a mess.

Speaking for me only

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    I agree (5.00 / 1) (#1)
    by jbindc on Mon Feb 01, 2010 at 01:09:13 PM EST
    There will come a time when the floodgates will be open and foreign corporations (or those corporations owned by foreingers) will be allowed to give money and influence elections.  For now, I think there are enough loopholes that it's being done already.

    You're right - this is a mess.

    Case in point, Rupert Murdoch discussed in comment #16 downthread.

    In 1995, Rupert Murdoch's Fox Network became the object of scrutiny from the Federal Communications Commission (FCC), when it was alleged that News Ltd.'s Australian base made Murdoch's ownership of Fox illegal. However, the FCC ruled in Murdoch's favor, stating that his ownership of Fox was in the best interests of the public.

    No doubt, the situation will worsen now that SCOTUS has removed all obstacles, thereby freeing corporations to dip into their bottomless pockets and write blank checks to their heart's content.  


    All is Clear as a Bell (5.00 / 1) (#21)
    by pluege on Mon Feb 01, 2010 at 04:57:23 PM EST
    Indeed, it is not clear how the Court could issue such a far-reaching decision and leave unresolved the issue of whether to government can restrict foreign speech and what measures it can take to do so.

    uhh? these are republicans: they make up any reality that serves their purpose. In this case, Citizens United was necessary to overcome the fund raising prowess of obama. The verdict was never in doubt.

    I can't wait for the Citgo (none / 0) (#2)
    by MKS on Mon Feb 01, 2010 at 01:11:55 PM EST
    commercials....Hugo Chavez gets to have his voice heard too.....What will the conservatives do about that?

    Or the PACs funded (none / 0) (#3)
    by MKS on Mon Feb 01, 2010 at 01:12:48 PM EST
    by Citgo.....

    How about (none / 0) (#7)
    by jbindc on Mon Feb 01, 2010 at 01:20:50 PM EST
    Ads brought to you by the Bush business partners - the Saudi Royal family or the Bin Laden family?

    How about a threshold (none / 0) (#4)
    by MKS on Mon Feb 01, 2010 at 01:16:34 PM EST
    of 10% foreign ownership triggering a prohibition....

    5% would be unconstitutionally too high....there is a standard for this they will create, right?  100% foreign ownership, not good; 51%, too much.  10% is a large stake....

    What was that about activist courts that legislate?

    Would you aggregate that? (none / 0) (#6)
    by jbindc on Mon Feb 01, 2010 at 01:19:36 PM EST
    If it's a publically held company, would you have to check the citizenship of all the individual stock holders and add it to those funds and (foreign) companies that hold stock?

    And, before you trade, you will (none / 0) (#9)
    by MKS on Mon Feb 01, 2010 at 01:36:55 PM EST
    have to offer proof of citizenship, so you can be accurately classified in tabulating the foreign ownerhship of the corps' shares you buy.

    And, of course, no Certificate of Live Birth will do--better get the long form from the hospital--to have on file with the SEC.....


    Threshhold is irrelevent (none / 0) (#18)
    by Dan the Man on Mon Feb 01, 2010 at 03:46:14 PM EST
    All the foreign company has to do is buy an American company which itself owns an American company in order to do political spending.

    For example, if foreign government A 100% owns American company B, then B can't do political spending if foreign owned companies are prohibited from doing that.

    But if American company B 100% owns another American company C, then American company C can spend politically as much as wants because its ownership is 100% American (ie it's ownership is American company B) even though it's owner's owner is 100% foreign.


    Well, trust buster (none / 0) (#26)
    by MKS on Mon Feb 01, 2010 at 07:00:08 PM EST
    Teddy Roosevelt must spinning.....

    We got rid of one of his protections--the prohibition against corporations contributing to campaigns.....

    Now, we can rid of interlocking directorates and all the rest...


    oh, indeed it has! (none / 0) (#5)
    by cpinva on Mon Feb 01, 2010 at 01:18:38 PM EST
    they have, quite literally, opened a pandora's campaign contribution box. i fear the damage to be done, before a future court has the opportunity to correct what the "gang o' 5" have wrought.

    Prediction: SCOTUS will say Foreign ownership (none / 0) (#8)
    by Dan the Man on Mon Feb 01, 2010 at 01:22:06 PM EST
    is like p*rn*gr*phy.  You know it when you see it.  And who determines what he sees will be the courts themselves ie it will be determined by the Supreme Court.

    I picked that dispute out of the opinion (none / 0) (#10)
    by andgarden on Mon Feb 01, 2010 at 01:51:53 PM EST
    on my first skim. I await Roberts's attempt to wiggle out of this one with some excitement. "Moët & Chandon sips for Kerry" anyone?

    Gonna be interesting (none / 0) (#11)
    by ruffian on Mon Feb 01, 2010 at 02:09:55 PM EST
    if foreign defense contractors start to get involved. Will they throw in their lot with Dem candidates in hopes of breaking some strangleholds on contracts?  Might hear some heads exploding then.

    So, Pat Buchanan believes that (none / 0) (#12)
    by inclusiveheart on Mon Feb 01, 2010 at 02:21:45 PM EST
    the Mexican government is involved in a secret plan to take over the United States by sending undocumented workers here and having them have babies who will, at some point in the future, be "activated" to take over the US.

    Remember that wacky conspiracy theory from old Pat?

    One wonders what this ruling will do to fuel his paranoia.  If and when Congress tries to resolve our immigration problems, Pat's going to come out swinging and likely make wild claims about foreign influence in the politics...

    People understand that the GOP will come out hard and fast against any Democrats that source "foreign" funding while they are filling up their coffers with donations from around the globe, right?

    I await the ACLU of Texas, Inc. (none / 0) (#13)
    by Wile ECoyote on Mon Feb 01, 2010 at 02:26:25 PM EST
    opinion on this.  Or the ACLU of Ohio, Inc. Or the ACLU of Illinois, Inc.  Or the National Rifle Association of America, Inc.  or Greenpeace, Inc.  I'd love the hear their opinions on this.  

    Seems to me the definition of a corporation is too large just to pin it on nasty, evil for-profit corporations like Apple, Inc.  

    As far as I know (none / 0) (#14)
    by Big Tent Democrat on Mon Feb 01, 2010 at 02:31:20 PM EST
    the ACLU does not involves itself in electoral politics.

    The ACLU is rigorously nonpartisan (5.00 / 1) (#28)
    by Peter G on Mon Feb 01, 2010 at 08:34:35 PM EST
    by definition, although legislative lobbying on issues is a key part of its mission.  Its non-profit arm, the American Civil Liberties Foundation, cannot even engage in substantial lobbying, at risk of losing 501(c)(3) (tax exempt, contributions deductible) status.  However, on the merits of the Citizen United case, the ACLU stood by its longstanding position that no restrictions on issue ads, or on election expenditures, are constitutional.  The ACLU amicus brief in the case is here.  In fact, all the many amicus briefs in the case are collected on this page.

    ACLU of Texas, inc (none / 0) (#31)
    by Wile ECoyote on Tue Feb 02, 2010 at 05:40:11 AM EST
    is a corporation, therefore it must not be trusted.  All corporations are bad, correct?  Just like Apple, inc., or Coca Cola, inc or National Rifle Association of America, inc.  

    Nothing to stop them (none / 0) (#15)
    by Wile ECoyote on Mon Feb 01, 2010 at 02:47:37 PM EST
    now, eh?  But actually how many corporations do you know get involved in electoral politics?  Would an for profit corporation like Apple, inc or Coca Cola, inc be more likely to get involved in electoral politics and alienate some customers or would Greenpeace, inc, or the National Rifle Association of America inc, be more likely involved in electoral politics?  

    As I have written (none / 0) (#34)
    by Big Tent Democrat on Tue Feb 02, 2010 at 09:26:05 AM EST
    I doubt Citizen United will have the effect some say it will.

    I do not expect an avalanche of corporate direct spending on elections and politics.

    however, I DO expect specific instances where corporations will overwhelmingly spend on certain issue and races.


    So FOX isn't involved in electoral politics? (none / 0) (#16)
    by FoxholeAtheist on Mon Feb 01, 2010 at 03:36:06 PM EST
    FOX was the first network to call the 2000 election for GW Bush - the decision was made by a FOX News executive who is W's cousin! FOX is owned by right-wing media mogul Rupert Murdoch. Here's how he conducts business in the US:
     Murdoch made his first acquisition in the United States in 1973, when he purchased the San Antonio Express-News. Soon afterwards, he founded Star, a supermarket tabloid, and in 1976, he purchased the New York Post. On September 4, 1985, Murdoch became a naturalized citizen in order to satisfy the legal requirement that only US citizens were permitted to own American television stations...

    In 1995, Murdoch's Fox Network became the object of scrutiny from the Federal Communications Commission (FCC), when it was alleged that News Ltd.'s Australian base made Murdoch's ownership of Fox illegal. However, the FCC ruled in Murdoch's favor, stating that his ownership of Fox was in the best interests of the public. In the same year, Murdoch announced a deal with MCI Communications to develop a major news website and magazine, The Weekly Standard...

    In 1996, Murdoch decided to enter the cable news market with the Fox News Channel, a 24-hour cable news station. Following its launch, the heavily-funded Fox News consistently eroded CNN's market share and eventually proclaimed itself as "the most-watched cable news channel."

    Don't you think Rubert Murdoch Inc. has slightly more financial pull than Greenpeace?

    Do I need to list every corporation in the US? (none / 0) (#22)
    by Wile ECoyote on Mon Feb 01, 2010 at 05:10:55 PM EST
    For profit or not?  Very well, fox broadcasting inc.  Happy?  I also think Greenpeace, inc has more pull than ACLU or Texas, inc.  What are you getting at?  You are more than welcome to list all the corporations you want.  

    I also think (none / 0) (#23)
    by Wile ECoyote on Mon Feb 01, 2010 at 05:13:48 PM EST
    Rupert Murdoch, inc. has more financial pull than National Rifle Association of America, Inc.

    Good observation. (none / 0) (#35)
    by FoxholeAtheist on Tue Feb 02, 2010 at 01:21:49 PM EST
    But, in arguing that corporations don't get involved in electoral politics, how in the name of gawd can anyone set out by entirely overlooking Rupert Murdoch Inc. To say nothing of a behemoth like FOX News; "the most-watched channel in cable news"; the nation's foremost purveyor of rightist propaganda with more viewership than CNN; the primary employer of miscreant former members of the Bush Administration.

    BTW, don't be so touchy. You may think this song is about you - but trust me, it's not  ;-)


    Help! Looks like endless chaos and (none / 0) (#17)
    by oldpro on Mon Feb 01, 2010 at 03:40:22 PM EST
    miles of litigation.

    Here's another example of why BTD is right about the courts being political.  How to deny it?

    I may need a nap and more coffee, but what I don't get is 'why?'  Why did the five make this leap into the unknown?  They aren't stupid people so I don't get it.  Is it simply that justices separate themselves from the reality of the results of their decisions?  Is it just a clinical exercise for them for which they need to take no personal responsibility for outcomes?

    Somebody...help those of us with no legal training to understand what's really going on here...and why...with the court.

    Greenwald Testiness is Understandable (none / 0) (#20)
    by pluege on Mon Feb 01, 2010 at 04:53:38 PM EST
    he's not often so terribly, horribly, obviously, illogically WRONG as in his support of the Citizens United abomination.

    NNNNNNOOOOOOOOOOO!!!!!!!! (none / 0) (#24)
    by pluege on Mon Feb 01, 2010 at 06:09:01 PM EST
    The Constitution is indisputably clear as a bell that it applies to only people, and only people of the United States. From the Constitution:

    We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.

    where is there room in that clear-as-a-bell, plain English statement - the very first in the Constitution - for non-humans and non-citizens? We and our posterity are not inanimate corporations and We are not foreigners. The Constitution is for the PEOPLE of the United States - period.

    Greenwald, in this instance is lost in his own mental masturbation, and the SCOTUS Cretin 5 are morons!  (does anybody read the document anymore?)

    So If Foreiners Don't Have Constitutional Rights (none / 0) (#25)
    by kaleidescope on Mon Feb 01, 2010 at 06:29:15 PM EST
    Can we take their property without compensation?  Can we put them in prison with recourse to habeas?  Can we deny them trial by jury?  Does the contracts clause not apply to them?

    Can we quarter troops in their homes?

    In many of my cases, foreign corporations claim that my enforcement efforts under California law are pre-empted by federal law.

    So can I tell them that the supremacy clause only protects corporations that are American citizens?

    Yes, Yes, and Yes (none / 0) (#27)
    by pluege on Mon Feb 01, 2010 at 07:36:33 PM EST
    There are no protections in the Constitution for corporations or non-citizens.

    What we choose to give in the way of protections by legislative means is a totally separate question.

    The SCOTUS Cretin 5 aren't wrong because we can't legislate privileges to corporations. They're wrong because there are NO RIGHTS bestowed to corporations in the Constitution. Therefore they can not invent rights that do not exist - the Constitution does not give them the right to do so.


    You are entitled to your opinion, (5.00 / 1) (#29)
    by Peter G on Mon Feb 01, 2010 at 08:53:32 PM EST
    even though it is wrong.  And you are entitled to that opinion even if you are not one of "the people" who established the Constitution.  Non-citizens are clearly protected by many of the Constitution's protections, although not necessarily all.  "We the people," determined that "to ensure the blessings of liberty" to themselves "and their posterity" they would also have to protect the liberties of others who were subject to the power of the United States.  They knew, for example, from their own experience that "the right of the people to be secure in their persons, houses, papers and effects" could not exist if the police were free to intrude into their neighbors' houses at will, on unfounded suspicion that contraband might be there and that the neighbors were not citizens.  This insight grew in scope gradually, as we all know.  But from the time the Bill of Rights was added, not only "the people" but also "any person" was expressly said to be protected from deprivation of "life, liberty or property without due process of law."  And "in a criminal case," the many rights listed in the Sixth Amendment are guaranteed to "the accused," without further restriction.  The First Amendment, in particular, contains not a word about who it is who might enjoy "the freedom of speech" to which it refers, nor who might be entitled to "the free exercise of religion"; both rights are protected without being defined in scope or application at all.  There is no reference in the First Amendment to either "persons" or "people" (except in reference to the right "of the people peaceably to assemble, to petition their government for a redress of grievances").  Textual analysis simply will not give you the answer to the "artificial [corporate] persons" problem, nor as to most provisions, to the "foreigners" question either.  A different, perhaps structure-and-purpose driven, mode of constitutional interpretation is required.

    You're wntitlted to your fantasies (none / 0) (#30)
    by pluege on Tue Feb 02, 2010 at 04:35:56 AM EST
    even though there are no words to support them in the Constitution. The words are plain and simple: We the people of the United States...of ourselves and our posterity Look up the meanings of the words if you need to.

    Well (5.00 / 1) (#32)
    by jbindc on Tue Feb 02, 2010 at 07:30:52 AM EST
    There are no words in the Constitution about the Air Force (or the President being Commander in Chief over Air Force personnel). The words "right to a jury of your peers", the right to privacy, "the right to vote", "marriage", "separataion of church and state" or "the right to travel" are not explicity mentioned in the Constitution either.

    WE are entitles to legislate or amend (none / 0) (#38)
    by pluege on Wed Feb 03, 2010 at 10:22:21 PM EST
    the Constitution to hives rights or privileges to anyone, or inanimate object we want including rocks. But there is no inherent rights in the Constitution that the government can not take away except to US citizens and their posterity. Its really very, very plain and simple.

    I quoted the words (5.00 / 1) (#33)
    by Peter G on Tue Feb 02, 2010 at 08:51:50 AM EST
    that support my points, pluege, and offered what I believe to be a logical explication.  You have offered no counter-argument.    

    Never fear (none / 0) (#36)
    by jbindc on Tue Feb 02, 2010 at 01:28:28 PM EST
    John Kerry is on the job!

    Sen. John Kerry (D-Mass.) joined calls to draft a constitutional amendment to mitigate the impact of a Supreme Court decision that lifted limits on corporate spending in politics.

    Kerry on Tuesday became the latest Democratic senator to endorse an amendment to address the decision in Citizens United v. Federal Election Commission.

    "I think we need a constitutional amendment to make it clear once and for all that corporations do not have the same free speech rights as individuals," Kerry said during a committee hearing.  

    Democrats have been mulling legislation to restrict the scope of the court's ruling, which knocked down large portions of existing campaign finance law.

    so did scotus commit treason? (none / 0) (#37)
    by Bornagaindem on Tue Feb 02, 2010 at 06:03:10 PM EST
    Money is the be all and end of getting your message out to Americans. That is why Obama in the end did not accept the spending limits of the public finance system.

    The Supreme Court has now made it possible for any person or any country in the world to own our elections. That means all of our elections, from national to local. All they need to do is form a corporation.

    Treason is defined as- any action to help a foreign government overthrow, make war against, or seriously injure the parent nation.

    I `d say the Supreme Court just did that - all in the name of protecting the free speech of an artificial legal entity called a corporation. No other country in the world would tolerate that kind of interference in their elections. Will we?