Contextualizing Corruption: Foreign Financing Bans and Campaign Finance Law

Abstract

Current federal law prohibits foreign nationals (excluding permanent residents) from funding independent express expenditures. Bluman v. FEC, a decision of the U.S. District Court for the District of Columbia authored by then-Judge Brett Kavanaugh, upheld this prohibition by relying on cases excluding foreign nationals from participating in acts of democratic self-governance. The Supreme Court summarily affirmed Bluman. The decision, however, sits on shaky foundations. It relies on a series of “political community” cases which are themselves remnants of an earlier, more xenophobic age. As many commentators have noted, Bluman also is in significant tension with the sweeping condemnation of speaker-based distinctions announced by the Supreme Court in Citizens United v. FEC. Finally, the decision runs seriously afoul of the current Court’s general refusal to accept as legitimate (much less compelling) any state interest in regulating campaign speech on the basis of its effect on voters rather than on candidates.

Despite these weaknesses, I argue in this article that Bluman was correctly decided, albeit for reasons different than those relied on by the district court. The reason foreign nationals can be prohibited from engaging in independent express advocacy is not that non-nationals cannot ever be part of the U.S. political community, or a general lack of First Amendment protection for their speech, or fears that the speech of non-nationals will somehow inappropriately influence the votes of American citizens. Instead, the compelling state interest supporting the prohibition is the same candidate based corruption rationale underlying all campaign finance regulation upheld by the current Court: independent expenditures by foreign nationals can be limited because they pose a risk of corrupting public office holders. They do so by creating incentives to pressure and reward foreign actors who spend on a candidate’s behalf in a context – foreign and international affairs – which it is uniquely difficult for courts, Congress, and the public to otherwise police. Unlike other independent expenditures, which the Court has said pose little risk of quid pro quo corruption or the appearance thereof, independent expenditures by foreign actors pose exactly that risk, and bans on foreign funded expenditures are a sufficiently tailored way – and may well be the only way - to tackle the particular problem they present.

This paper proceeds in three parts. Part I explains the history of foreign financing bans and their uncomfortable fit with the rest of U.S. campaign finance law. Part II contextualizes the Court’s understanding of corruption, by deconstructing current doctrine and looking more closely at how the Court has in fact understood corruption in context, both in the past and in current law, and then applying a similarly contextualized approach to foreign funding bans. Part III demonstrates the close connection between the corruption risk posed by foreign financing of election activities and issues of national security, illustrating why judicial deference to congressional judgment is appropriate here. The article concludes by summarizing the current Court’s acceptance of contextually situated corruption, and the importance of taking such an approach when evaluating the constitutionality of foreign financing bans.

Preventing foreign nationals from funding independent express expenditures will not solve all of the woes facing the U.S. electoral system. It is nonetheless an important prohibition to defend. Our founders were deeply concerned about foreign influence over U.S. lawmakers, and went to extensive lengths to prevent it from taking root. Statutes like that at issue in Bluman are the current incarnation of these long-standing efforts, and should continue to be upheld against First Amendment challenges.

Keywords: First amendment, foreign financing, campaign finance law, Bluman v. FEC

JEL Classification: K10