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.