International Campaign Influence after Citizen United: Misplaced Attention

President Obama stated his displeasure of the Supreme Court decision in Citizen United only days after the opinion was released when he said that the decision “open[ed] the floodgates for special interests — including foreign corporations — to spend without limit in our elections. Well I don’t think American elections should be bankrolled by America’s most powerful interests, or worse, by foreign entities.” These feeling and concerns have not been forgotten as recently reported by the Wall Street Journal, members of Congress have been attacking certain independent spending groups about the use of foreign money in political spending in the upcoming midterm elections. This type of political pressure being applied can best be seen in recent complaints about the U.S. Chamber of Commerce, a strong supporter of several GOP gubernatorial and senatorial candidates, using general treasury funds which contain some $300,000 of annual dues collected from foreign members in their recent string of political ads. What the article does not point out is that the U.S. Chamber of Commerce collects hundreds of millions of dollars a year in annual dues and budgeted $75,000,000 in spending for this election cycle alone. The point that I would like to make is if foreign influence on political elections is such an important issue, their efforts would be better served amending §310 of the Communications Act of 1934 than pining about $300,000 of general treasury funds.

Before turning to the provisions of the Communications Act, I will discuss how the members of the Court addressed foreign involvement in U. S. elections. The majority opinion written by Justice Kennedy only briefly touches on this issue and largely dismisses these concerns without much thought. “We need not reach the question whether the Government has a compelling interest in preventing foreign individuals or associations from influencing our Nation's political process. Cf. 2 U.S.C. § 441e (contribution and expenditure ban applied to “foreign national[s]”). Section 441b is not limited to corporations or associations that were created in foreign countries or funded predominately by foreign shareholders. Section 441b therefore would be overbroad even if we assumed, arguendo, that the Government has a compelling interest in limiting foreign influence over our political process. See Broadrick, 413 U.S., at 615, 93 S.Ct. 2908.”

Justice Stevens voiced more concern about foreign involvement in his dissent. “Unlike voters in U.S. elections, corporations may be foreign controlled. Unlike other interest groups, business corporations have been “effectively delegated responsibility for ensuring society's economic welfare”; they inescapably structure the life of every citizen. “ ‘[T]he resources in the treasury of a business corporation,’ ” furthermore, “ ‘are not an indication of popular support for the corporation's political ideas.’ ” Id., at 659, 110 S.Ct. 1391 (quoting MCFL, 479 U.S., at 258, 107 S.Ct. 616). “ ‘They reflect instead the economically motivated decisions of investors and customers. The availability of these resources may make a corporation a formidable political presence, even though the power of the corporation may be no reflection of the power of its ideas.’ ” 494 U.S., at 659, 110 S.Ct. 1391 (quoting MCFL, 479 U.S., at 258, 107 S.Ct. 616).

While the idea that limiting foreign influence in the American election process is sound, I would argue that it would be better accomplished by revising the laws concerning the licensing of broadcast, radio, and common carriers. The impact that media stations have over the flow of information is monumental. While the recent explosions of internet advertising has drastically change the landscape of political advertising over the last 10 years, the majority of campaign funds are still spent on ads involving traditional media outlets. The current status of federal statutes allows foreign investors significant influence entities holding these licenses. Specifically, 47 U.S.C. §310(b)contains the following provision:

No broadcast or common carrier or aeronautical en route or aeronautical fixed radio station license shall be granted to or held by—

(1) any alien or the representative of any alien;

(2) any corporation organized under the laws of any foreign government;

(3) any corporation of which more than one-fifth of the capital stock is owned of record or voted by aliens or their representatives or by a foreign government or representative thereof or by any corporation organized under the laws of a foreign country;

(4) any corporation directly or indirectly controlled by any other corporation of which more than one-fourth of the capital stock is owned of record or voted by aliens, their representatives, or by a foreign government or representative thereof, or by any corporation organized under the laws of a foreign country, if the Commission finds that the public interest will be served by the refusal or revocation of such license.

Allowing a corporation holing a license to be influenced by 20% ownership foreign investors or be controlled directly/indirectly by a corporation with 25% foreign investment greatly exceeds the level of potential influence that is currently being complained of in Washington. While I do not suggest a grand reorganization of licensing statutes, I feel that it would be a better way to address the concerns of those fearing foreign influence. That is to say that foreign influence is the real concern, and not just their pending re-elections.