The First Amendment Lost in Translation: Preventing Foreign Influence in U.S. Elections After Citizens United v. FEC

This Article invites readers to consider an unusual approach to curtailing the threat of foreign corruption: limiting political speech. This Article argues that permitting foreign-owned and foreigncontrolled corporations to pour money into U.S. elections has undermined self-governance and threatens our democracy. By exploring both constitutional and extra-constitutional theory, this Article adds several novel arguments to the ongoing debate on the First Amendment’s relationship to campaign finance laws governing foreign corporations. The basic question this Article addresses is whether the First Amendment protects political spending by foreign-controlled or foreign-owned U.S. corporations. This issue has become more pressing since the Supreme Court in Citizens United v. FEC decided, in a 5–4 vote, to strike down virtually any limits on independent expenditures by domestic corporations. However, the conclusions reached in that case are not binding on the very different question of whether the government has a compelling state interest in preventing foreign influence or distortion vis-à-vis the financial participation of foreigncontrolled or foreign-owned domestic corporations in U.S elections. Understanding the potential impact of Citizens United on legislative efforts to prevent foreign influence on U.S. politics is an extremely timely topic. In his 2010 State of the Union Address, President Obama criticized the Citizens United decision for opening the floodgates on political spending by foreign corporations’ U.S. subsidiaries. He called for a congressional response in the form of stronger campaign finance laws. On June 21, 2010, the House passed the DISCLOSE Act which, among other things, would extend the current ban on foreign contributions and independent expenditures to foreign-controlled and foreign-owned corporations. The Senate, however, has thus far failed to reach agreement on the Senate version of the bill. This Article provides an analytical and historical framework for predicting whether the current legislative proposal would pass constitutional muster. I offer three possible approaches: (1) lowering the standard from traditional strict scrutiny to intermediate scrutiny, (2) applying an “antidistortion” rationale limited to cases involving foreign influence, or (3) classifying the restricted political speech as impermissibly “coordinated” with foreign principals as suggested by dicta in the Supreme Court’s latest free speech case Holder v. Humanitarian Law Project. The United States has long been the global leader in fighting corruption abroad. However, a great deal of foreign corruption remains in our own back yard. For example, the recent BP oil spill may prove to be a direct consequence of BP using its political clout to get regulators to look the other way. My hope is this Article will further the dialogue on how foreign corruption occurs in the United States in the form of foreign corporate influence on (and distortion of) our political process, even as it offers some possible solutions for determining when and how foreign-controlled corporate political speech may be limited for the benefit of our society