On Things That Aren't True About The Citizens United Ruling

by Pejman Yousefzadeh on January 26, 2010

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White House and Democratic spin to the contrary notwithstanding, it is not true that the Citizens United ruling will allow foreign corporations to “get into the act” of influencing American politics.

Using “foreign corporations” as a bugaboo, by the way, is oh-so-familiar a scare tactic.

  • http://www.pbcliberal.com PBCliberal

    I'd respectfully suggest you re-read your supporting link.

    “Justice Kennedy explicitly says the Court did not decide whether Congress has the power to prevent “foreign individuals or associations from influencing our Nation’s political process.” Nothing in Citizens United prevents Congress from prohibiting such political spending by foreign corporations. The Supreme Court might uphold such a law or it might strike it down.”

    Since Congress has not acted (the decision only came down last week) there is nothing that at the present moment restricts an American subsidiary of a foreign corporation from making an independent political expenditure.

    While there might be laws that prevent foreign nationals or corporations from “getting involved in American elections,” Citizens United was a first amendment decision that determined independent expenditures were different than direct involvement in elections such as donating to a candidate.

    If its not true that Citizens United overturned 100 years of precedent because the Tillman Act still prohibits direct corporate contributions, then its also not true that these “other parts of existing laws” that prohibit contributions have any bearing on independent expenditures that were made legal on first amendment grounds.

    Everybody on the left and the right seems to be trying to have this both ways.

  • CSBadeaux

    I'd respectfully suggest that you read his supporting link, as well. Click through the links there, as well.

    Since Congress has not acted (the decision only came down last week) there is nothing that at the present moment restricts an American subsidiary of a foreign corporation from making an independent political expenditure.

    Except, you know, FEC regulations.

  • http://www.pbcliberal.com PBCliberal

    Do you mean the ones found unconstitutional? What specific regulations on independent expenditures remain for American subsidiaries of foreign corporations? I'm sure Justice Stevens would like to know; he could flesh out his dissenting opinion!

  • CSBadeaux

    Not really all that great at reading opinions, are you?

    Or, indeed, the link to which I was referring. Here. I'll help. Click on Pejman's first link. Read that page until you get to “as Brad Smith argues.” Click that link. Read down until you get to [11 CFR 110.20(i)]. Keep reading to the end of the blockquote.

    Come back when you've had a chance to do so.

  • http://www.pbcliberal.com PBCliberal

    This one?

    A foreign national shall not direct, dictate, control, or directly or indirectly participate in the decision making process of any person, such as a corporation, labor organization, political committee, or political organization with regard to such person's Federal or non-Federal election-related activities, such as decisions concerning the making of contributions, donations, expenditures, or disbursements in connection with elections for any Federal, State, or local office or decisions concerning the administration of a political committee.

    1. This is controlling legislation for a foreign national, not an American subsidiary of a foreign corporation with respect to controlling decision making in a campaign. That is not what this decision is about, and that was made clear by both majority and dissent. The Tillman Act, for instance, is still in force. Note that the “decision making” doesn't include an individuals decision on how they will cast their own ballot. There's nothing here that prevents an American subsidiary from buying time to express a political belief that leads to the inescapable conclusion that a particular candidate is unfit for office. The right is even stronger if the subsidiary asserts that the decision-making was done without the parent company's involvement.

    2. Any attempt to read this in a manner that restricts political comment will run afoul of the first amendment, the same way Austin was struck down.

    That's what Justice Stevens is concerned about in his dissent.

    You might want to use the lines you devote to personal attack to advance your argument. It makes one wonder if the attack is the most cogent argument you have.

  • CSBadeaux

    So Citizens United no longer overrules the entirety of the Code of Federal Regulations. Let us all breathe a sigh of relief.

    Moving on.

    This is controlling legislation for a foreign national, not an American subsidiary of a foreign corporation with respect to controlling decision making in a campaign. That is not what this decision is about, and that was made clear by both majority and dissent. The Tillman Act, for instance, is still in force. Note that the “decision making” doesn't include an individuals decision on how they will cast their own ballot. There's nothing here that prevents an American subsidiary from buying time to express a political belief that leads to the inescapable conclusion that a particular candidate is unfit for office. The right is even stronger if the subsidiary asserts that the decision-making was done without the parent company's involvement.

    Let's take this in order.

    First, it's not legislation.

    Second, this regulation governs, and I believe I reasonably summarize here, a foreign national directing its American subsidiary to do anything except vote in an election. On that much, I believe we agree.

    Third, and this is where we disagree, you are apparently of a mind that Citizens United gave any corporate form the right to expend money to buy airtime before an election without Congressional (or in this case, Executive) regulation or restriction. This is nonsense on stilts. A foreign national has no right to speak in the American political process. Whether the subsidiary “asserts that the decision-making was done without the parent company's involvement” (gasp! someone denying criminal liability! perish the thought!) or not, it does not somehow thereby acquire the ability to break the law. Put differently: American citizenship does not act as an affirmative defense to the criminal act of allowing a foreign national to make expenditures in American elections, directly, indirectly, or as a passthrough.

    Fourth, the statement that “[t]here's nothing here that prevents an American subsidiary from buying time to express a political belief that leads to the inescapable conclusion that a particular candidate is unfit for office” simply means you didn't read the regulation.

    Fifth, the statement “any attempt to read this in a manner that restricts political comment will run afoul of the first amendment, the same way Austin was struck down” is at best a wild-eyed overreading of the decision, and at worst simply a talking point you picked up elsewhere. On what grounds? Did Citizens United slip in something making the FEC unconstitutional in a footnote that's only visible to your eyes? Perhaps it's in the footnote that invalidated the CFR.

    Indeed, this goes to a larger point: You assert that because Citizens United struck down part of the McCain-Feingold abomination, that means it's Nellie-bar-the-door time. Generally, when making this sort of statement, it's helpful to provide cites in the opinion that support this silliness, and not merely your summary of whatever Justice Stevens's clerks scribbled. After all, the decision is law, and Justice Stevens's ghostwritten work is, as we sit here, not even persuasive authority.

    Finally:

    You might want to use the lines you devote to personal attack to advance your argument. It makes one wonder if the attack is the most cogent argument you have.

    I have a weak point for people who don't even bother to read articles before they shoot off ridiculous comments that seem custom-determined to prove that they didn't read the articles. In this particular case, my “attack” was to note that you didn't even read what you accused Pejman of failing to read; to restate the point when you didn't bother to click through the second time; and, now, I'm pointing out that this entire thread is a result of your need to regurgitate something you read elsewhere, and not actually an attempt to engage Pejman's point.

  • http://www.pbcliberal.com PBCliberal

    You're right, its federal regulation not code, which means its even more likely to not withstand a constitutional challenge, especially since this court seems hell-bent to open the floodgates (not that that's a bad decision, its just pretty obvious that judicial activism isn't a problem for them as long as its not their ox being gored).

    Can we agree that the Citizen's United decision extends constitutional protection to independent expenditures for corporations?

    If you're willing to characterize Justice Steven's opinion as “what his clerks scribbled,” I now understand why you had little use for my opinion, but I assure you I took all the links before I opined here, and I read all the opinions in this case and have previously read all the opinions they cite before I came to my own decisions about it.

  • CSBadeaux

    I'd respectfully suggest that you read his supporting link, as well. Click through the links there, as well.

    Since Congress has not acted (the decision only came down last week) there is nothing that at the present moment restricts an American subsidiary of a foreign corporation from making an independent political expenditure.

    Except, you know, FEC regulations.

  • http://www.pbcliberal.com PBCliberal

    Do you mean the ones found unconstitutional? What specific regulations on independent expenditures remain for American subsidiaries of foreign corporations? I'm sure Justice Stevens would like to know; he could flesh out his dissenting opinion!

  • CSBadeaux

    Not really all that great at reading opinions, are you?

    Or, indeed, the link to which I was referring. Here. I'll help. Click on Pejman's first link. Read that page until you get to “as Brad Smith argues.” Click that link. Read down until you get to [11 CFR 110.20(i)]. Keep reading to the end of the blockquote.

    Come back when you've had a chance to do so.

  • http://www.pbcliberal.com PBCliberal

    This one?

    A foreign national shall not direct, dictate, control, or directly or indirectly participate in the decision making process of any person, such as a corporation, labor organization, political committee, or political organization with regard to such person's Federal or non-Federal election-related activities, such as decisions concerning the making of contributions, donations, expenditures, or disbursements in connection with elections for any Federal, State, or local office or decisions concerning the administration of a political committee.

    1. This is controlling legislation for a foreign national, not an American subsidiary of a foreign corporation with respect to controlling decision making in a campaign. That is not what this decision is about, and that was made clear by both majority and dissent. The Tillman Act, for instance, is still in force. Note that the “decision making” doesn't include an individuals decision on how they will cast their own ballot. There's nothing here that prevents an American subsidiary from buying time to express a political belief that leads to the inescapable conclusion that a particular candidate is unfit for office. The right is even stronger if the subsidiary asserts that the decision-making was done without the parent company's involvement.

    2. Any attempt to read this in a manner that restricts political comment will run afoul of the first amendment, the same way Austin was struck down.

    That's what Justice Stevens is concerned about in his dissent.

    You might want to use the lines you devote to personal attack to advance your argument. It makes one wonder if the attack is the most cogent argument you have.

  • CSBadeaux

    So Citizens United no longer overrules the entirety of the Code of Federal Regulations. Let us all breathe a sigh of relief.

    Moving on.

    This is controlling legislation for a foreign national, not an American subsidiary of a foreign corporation with respect to controlling decision making in a campaign. That is not what this decision is about, and that was made clear by both majority and dissent. The Tillman Act, for instance, is still in force. Note that the “decision making” doesn't include an individuals decision on how they will cast their own ballot. There's nothing here that prevents an American subsidiary from buying time to express a political belief that leads to the inescapable conclusion that a particular candidate is unfit for office. The right is even stronger if the subsidiary asserts that the decision-making was done without the parent company's involvement.

    Let's take this in order.

    First, it's not legislation.

    Second, this regulation governs, and I believe I reasonably summarize here, a foreign national directing its American subsidiary to do anything except vote in an election. On that much, I believe we agree.

    Third, and this is where we disagree, you are apparently of a mind that Citizens United gave any corporate form the right to expend money to buy airtime before an election without Congressional (or in this case, Executive) regulation or restriction. This is nonsense on stilts. A foreign national has no right to speak in the American political process. Whether the subsidiary “asserts that the decision-making was done without the parent company's involvement” (gasp! someone denying criminal liability! perish the thought!) or not, it does not somehow thereby acquire the ability to break the law. Put differently: American citizenship does not act as an affirmative defense to the criminal act of allowing a foreign national to make expenditures in American elections, directly, indirectly, or as a passthrough.

    Fourth, the statement that “[t]here's nothing here that prevents an American subsidiary from buying time to express a political belief that leads to the inescapable conclusion that a particular candidate is unfit for office” simply means you didn't read the regulation.

    Fifth, the statement “any attempt to read this in a manner that restricts political comment will run afoul of the first amendment, the same way Austin was struck down” is at best a wild-eyed overreading of the decision, and at worst simply a talking point you picked up elsewhere. On what grounds? Did Citizens United slip in something making the FEC unconstitutional in a footnote that's only visible to your eyes? Perhaps it's in the footnote that invalidated the CFR.

    Indeed, this goes to a larger point: You assert that because Citizens United struck down part of the McCain-Feingold abomination, that means it's Nellie-bar-the-door time. Generally, when making this sort of statement, it's helpful to provide cites in the opinion that support this silliness, and not merely your summary of whatever Justice Stevens's clerks scribbled. After all, the decision is law, and Justice Stevens's ghostwritten work is, as we sit here, not even persuasive authority.

    Finally:

    You might want to use the lines you devote to personal attack to advance your argument. It makes one wonder if the attack is the most cogent argument you have.

    I have a weak point for people who don't even bother to read articles before they shoot off ridiculous comments that seem custom-determined to prove that they didn't read the articles. In this particular case, my “attack” was to note that you didn't even read what you accused Pejman of failing to read; to restate the point when you didn't bother to click through the second time; and, now, I'm pointing out that this entire thread is a result of your need to regurgitate something you read elsewhere, and not actually an attempt to engage Pejman's point.

  • http://www.pbcliberal.com PBCliberal

    You're right, its federal regulation not code, which means its even more likely to not withstand a constitutional challenge, especially since this court seems hell-bent to open the floodgates (not that that's a bad decision, its just pretty obvious that judicial activism isn't a problem for them as long as its not their ox being gored).

    Can we agree that the Citizen's United decision extends constitutional protection to independent expenditures for corporations?

    If you're willing to characterize Justice Steven's opinion as “what his clerks scribbled,” I now understand why you had little use for my opinion, but I assure you I took all the links before I opined here, and I read all the opinions in this case and have previously read all the opinions they cite before I came to my own conclusions about it.

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