Justice Stevens Misspeaks ... Again
A recent speech by former Justice John Paul Stevens predicts that the Supreme Court will have to revisit its earlier decision in Citizens United in the near term. His chief point appears to be that the Court will have to decide whether the protections that are afforded to domestic corporations should be afforded to their foreign counterparts; a task, Steven says, "that will create a crack in the foundation of the Citizens United majority opinion." The issue is surely an important one, but it was one that was left open in the earlier decision. The ostensible source of concern is that foreign corporations could, through contributions, exert an undue influence on the American political process.
The issue that he raises is a fair one, but the answer to the question is not, I fear, what he wants it to be. The proper response is to let foreign corporations speak about American political elections as well as domestic ones, and on the same terms and conditions. To see why, start with this question: suppose the United States wanted to pass a new law that forbade all foreign newspapers and magazines distributed in the United States from commenting on American political affairs. Just to make it interesting, include online publications in the prohibition.
The decision would surely be struck down as a massive invasion of freedom of speech. There would, of course, be no ability of the United States to legislate how these media outlets acted in their own country or in this one. The protection of freedom speech is general in terms, and should be applied to all comers equally. After all, Justice Stevens rightly insisted that the fundamental procedural protections needed for persons incarcerated under the control of the United States should extend to aliens, which is correct whether we speak of habeas corpus or due process.
There are, moreover, clear reasons why these foreign entities might want to speak their piece on American affairs. They do business in this country and are subject to its laws. They are vitally concerned with who gets elected to public office and they are equally concerned with laws that can--and do--have a dramatic effect on the way in which they conduct their business in the United States and (given the extraterritorial ambition of many banking and antitrust laws) in their home countries. They have no vote in American elections, which is equally true of American corporations. But there is no reason why they should not be able to voice their concerns about what goes on in this country, and to add a fresh perspective (which could differ from firm to firm) that would allow American voters to make more informed decisions.
Speaking more generally, the most dramatic recent development lies not in the area of corporate speech, but in the rise of Super PACs that operate independently of political campaigns and are intended to push hard for or against different candidates in primary or general elections. These organizations spend a lot of money and have a strong track record of unseating various well-entrenched incumbents, even those with political endorsements from powerful individuals. I am hard pressed to see any First Amendment argument that makes this higher level of political participation a suspect activity. I hope that the Supreme Court returns to this issue, and expands its protection of corporate (and individual) speech to foreigners as well. The last thing that the United States' political system needs is a new dose of jingoism.
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Oct '10
Re: Justice Stevens Misspeaks ... Again
If I read you correctly - and I am not an attorney (and don't even play one on TV or elsewhere) - you have opened a very interesting area for discussion. And I will have to think it through and, pardon the expression, evolve.
My first instinct is to assume a jingoistic position and wish to ban all foreign contributions to our Super PACs and other vehicles for free political speech. I am thinking of big expenditures from, say, Al Qaeda or drug cartels or Iranian mullahs. If labeled as to origin, how difficult would it be to trace $$ back to the sources?
OTOH, giving them access to the system - as they already have through those lobbyists, registered and stealthy, they hire - for the purposes of getting a fair shake in the economy...maybe I haven't as much of a problem with that.
And do we want similar access to the parallel systems in other countries? Is it available? Can we exercise it without violating the FCPA?
Fascinating area to explore - thank you!
Re: Justice Stevens Misspeaks ... Again
"The proper response is to let foreign corporations speak about American political elections as well as domestic ones, and on the same terms and conditions."
That seemed wrong to me...until I reached the end of your post, Richard. Whereupon, I was convinced.
Why can't we have a Supreme Court populated with one Richard Epstein and eight holograms of same?
Nov '10
Re: Justice Stevens Misspeaks ... Again
I ditto Peter!
Dec '10
Re: Justice Stevens Misspeaks ... Again
The left assumes that all politicians are for sale. Perhaps this is because all politicians on their side are?
Mar '11
Re: Justice Stevens Misspeaks ... Again
This is some rather pernicious logic. A ruling such as you indicate Prof. Epstein would give foreign regimes an equal voice in the selection of our leaders as US citizens. State owned corporations, explicit or implicit, are the norm in a significant number of nations and your stance would give them a greatly increased platform by which to advocate leaders be brought to office who are hostile to this nation and its' citizens.
I am certainly not a sufficient jurist to debate the legality of this with yourself yet nonetheless this position seems rash and worth a great deal more deliberation.
Jul '10
Re: Justice Stevens Misspeaks ... Again
Oh, I can think of a couple of things that might be worse. For instance, more "free" stuff for everyone with federal/state/local strings attached, paid for by debt.
And if jingoism is your boogeyman du jour, just wait until a foreign corporation runs ads against a populist candidate with money. You ain't seen nothin' yet.
Feb '11
Re: Justice Stevens Misspeaks ... Again
Well, I'm not convinced.
I see on the main page right now there is a post about the Sierra Club's latest idiocy. Since I consider their positions so obviously not in the national interest I've often wondered if Saudi Arabia or Russia or some other nation were funding their lobbying operations with an eye to wrecking the US economy.
For the sake of my argument let's say an enemy of the Republic was in fact funding the Sierra club with an eye to harming us. And that fact became known to the government, beyond a shadow of a doubt.
I'm supposed to believe that the government has no right to take action to prevent that? Because of the First Amendment?
Uhm... I'm dubious. Someone once said the Constitution was not a suicide pact. Perhaps I'm just being dense...but I don't think it's jingoistic for the US government to prevent our enemies from lobbying for an end to the Republic.
Jun '10
Re: Justice Stevens Misspeaks ... Again
I am not convinced either. I am all for unfettered political speech and spending by citizens and US corporations. If you want a say on our system, become a citizen or set up shop here. I do not believe any constitutional rights should be extended to non-citizens except as a public policy matter. Just as we can freely wiretap overseas conversations, we should be able to regulate foreign influence on US elections.
Dec '10
Re: Justice Stevens Misspeaks ... Again
Exactly, Tucson Sean.
The Bill of Rights applies to citizens of the United States of America. It does not apply to Russian oligarchs, members of the Chinese Politburo, or the Queen of England.
Actually, let's use that that last example as a thought experiment:
"Hey, Madison! Did you know the way you wrote the Constitution means that King George III can fund an American President's campaign via a SuperPAC?"
Edited on June 1, 2012 at 3:00pmDec '10
Re: Justice Stevens Misspeaks ... Again
[Aside: I cop to being a paleo-conservative by temperament, and hence occasionally out of step with the mainstream of the GOP, if not the conservative movement. But even so...what is with all these people that think there is something wrong with attempting to rig the international game in favor of people are are actually American citizens? I mean, for crying out loud, shouldn't that be job #1 of the Federal government?]
Oct '10
Re: Justice Stevens Misspeaks ... Again
Umm--people here do realize the difference between advocating a position and voting for it?
And that correlation (money spent on measure) does not equal causation (measure passed)?
Feb '11
Re: Justice Stevens Misspeaks ... Again
I'm still pondering this. Obviously.
Let's say the government of China forms a corporation with the explicit purpose of lobbying for policies that will harm the United States.
Am I correct to interpret this post as meaning that Professor Epstein believes there is a constitutional right for China to do this?
Again maybe I'm just dumb. But that seems like a bad idea to me.
Does that also mean that the Chinese People's Liberation army also has a constitutional right to give money to American political campaigns? Like the Bill Clinton campaign, in 1996? Or that the Obama campaign also has a constitutional right to disable address verification for online contributions, thereby enabling foreign donations?
Yet again maybe I'm just stupid. But I don't see that in the Constitution, and I fear Professor Epstein might.
Mar '11
Re: Justice Stevens Misspeaks ... Again
J. D. Fitzpatrick: Umm--people here do realize the difference between advocating a position and voting for it?
And that correlation (money spent on measure) does not equal causation (measure passed)? · 11 hours ago
Only you appear to be confused sir, you state the blatantly obvious and then inquire if others can follow you meanderings. Words are not votes yet words have power, that such power should be entrusted to foreign leadership with a proven record of hostility to this nation and its' citizens is the object of discussion.
You would do well to give further reflection to this issue.
Edited on June 2, 2012 at 6:22am