Should Foreigners Be Permitted to Make Campaign Contributions to U.S. Candidates?
Surprisingly, the Answer May Be Yes

By MICHAEL C. DORF
Wednesday, Dec. 24, 2003

Recently, the liberal advocacy group MoveOn.org announced that it would no longer accept donations from foreign sources. Previously, a Swedish group, Democracy Aid '04, had urged Europeans to contribute to MoveOn.org as a way to defeat President Bush's re-election bid.

Meanwhile, last week, the Drudge Report, the New York Sun, and other politically conservative news outlets reported that a group called "Canadians for Clark" was raising money from Canadians to support the candidacy of Democratic Presidential hopeful Wesley Clark.

Foreigners who have not been admitted to the United States as permanent residents are prohibited by law from donating funds to candidates for U.S. election. Accordingly, the Canadian site reportedly advised visitors to send money to MoveOn.org as a method of circumventing the prohibition. I say "reportedly" because when I visited the Canadian website the day after the story broke, I found only a solicitation of funds from U.S. citizens and a statement that Canadians cannot contribute but should spread the news and hope that Americans "take notice."

But suppose that MoveOn.org, Canadians for Clark, and Democracy Aid '04 had, in fact, been soliciting foreign campaign contributions. So what? Is the law prohibiting foreign donations to American campaigns constitutional? Is it a good idea?

One might think that these are easy questions. Just as we need not permit foreigners to vote in our elections, surely we need not permit them to make campaign contributions to influence the outcomes of our elections, right?

Yet the issue is not so simple. The Supreme Court's recent decision upholding most of the McCain-Feingold campaign finance reform law but striking down an obscure provision that barred minors from donating to political campaigns suggests that the ban on foreign campaign contributions may be invalid. And even if the ban is constitutional, it's at odds with our foreign policy.

The Statutory Ban on Foreign Money in U.S. Elections

A federal statute prohibits persons who are neither U.S. citizens nor permanent residents (that is, holders of "green cards") from contributing any money to candidates for state or federal office, or to American political parties. The provision was originally enacted in the 1970s. In the 1990s, the statute received some public attention when it was alleged that fundraisers for the Democratic Party and its candidates were attempting to circumvent the law by raising money from foreign sources, including the People's Republic of China.

In 2002, the law was amended with the adoption of the Bipartisan Campaign Reform Act--also known as "BCRA" or "McCain-Feingold." The amendment made clear that the foreign money ban applied to state as well as federal elections, a position that the Federal Election Commission had taken under the old wording of the statute.

The 2002 amendment also added a prohibition on the use of foreign funds for "independent expenditures" on campaign speech. As the term suggests, an independent expenditure supports a candidate (typically through advertising) but is not funded by the candidate himself or herself.

BCRA also regulates independent expenditures funded by U.S. citizens, but it falls far short of a ban. Under BCRA, American citizens who spend more than $1,000 for election-related activities within 20 days of an election need only comply with various reporting requirements. They do not face the flat ban on election speech applicable to foreigners.

Is the Ban on Campaign Donations by Foreigners Constitutional?

The ban on campaign donations and election-related activities by foreigners has not been tested in the courts. For example, the plaintiffs in the recently decided Supreme Court case of McConnell v. Federal Election Comm'n did not challenge the ban.

However, the Court's decision in that case--along with prior Supreme Court precedent--casts doubt on the ban's constitutionality.

While the Supreme Court upheld most of BCRA in the McConnell case, it invalidated a ban on campaign contributions by minors (that is, persons under 18). And it did so through reasoning that would seem to apply to the foreigner ban (a neighboring provision of the same statutory scheme) as well.

The Court's brief discussion of the minor ban in McConnell consisted of two steps: First, the Court recited the proposition that "minors enjoy the protection of the First Amendment." Second, the Court found that the government had not offered a sufficiently compelling justification for a flat ban on the exercise of minors' free speech rights in the context of political contributions. Both steps of the Court's reasoning would appear to apply to foreigners as well as minors.

Applying the McConnell Ruling to the Ban on Foreign Contributions

To begin, speech by foreigners effectively enjoys the protection of the First Amendment--thus satisfying the first step of the McConnell Court's reasoning.

Because the First Amendment protects "the freedom of speech," rather than the freedom of any particular speaker, the Court has held that there is a constitutionally protected right of the public to receive information, whether from a foreign or domestic source.

For example, in the 1965 case of Lamont v. Postmaster General, the Court invalidated a federal statute that forbade the post office from delivering "communist political propaganda" that originated overseas, unless the U.S. recipient specifically indicated a desire to receive such material. Without so much as pausing over the fact that the speaker in the particular case was a foreigner, the Court proceeded directly to a discussion of the "addressee's First Amendment rights."

Swedes who operate Democracy Aid '04 may not themselves have First Amendment rights while operating their website in Sweden. Nevertheless, were the U.S. government to attempt to block that website or, pursuant to the foreign campaign expenditure ban, to block the airing of Swedish-funded anti-Bush television ads during the week before the general election, the government action would infringe the right of the American public to receive information. (Blocking donations by Swedes and other foreigners to third-party organizations would be less problematic under the relevant Supreme Court precedents, which treat expenditures of one's own money as entitled to greater free speech protection than contributions to facilitate the speech of others. I'll put that distinction aside for present purposes, however.)

To say that a law infringes free speech is not to say that it unconstitutionally violates free speech. To make that further determination we must look to the second step of the McConnell Court's reasoning--which would ask here whether there is a sufficiently compelling justification for a flat ban on foreign campaign contributions and independent expenditures.

In McConnell, the defenders of the minor ban argued that it prevented adults from making campaign contributions in their children's names as a means of circumventing BCRA's individual-based dollar limits. But the Court found this justification unconvincing, given the absence of any record of such abuses, and the fact that narrower Congressional options--such as household-based dollar limits, or a ban on contributions by very young children who could be presumed not to have political views--were available.

It is not entirely clear whether the ban on contributions by foreigners would survive this second step of analysis. On the one hand, the weak justification rejected by the Court for the minor ban is even weaker for the foreign ban: It is harder for Americans to circumvent BCRA's dollar limits by enlisting foreigners as channels for their donations than it is for them to enlist their own children in the same ruse.

But on the other hand, there is an interest that arguably justifies the foreigner ban that does not apply to the minor ban: The common-sense notion that elections should reflect the views of the electorate.

Although minors are not members of the electorate, they are members of our political community and will one day be members of the electorate proper. Foreigners who do not permanently reside in the United States, most people undoubtedly think, have no business trying to affect the outcome of our elections.

Why The Ban on Foreign Contributions Poses a Difficult Constitutional Question

Is there a compelling government interest--one sufficiently strong to override the presumptive protection of the First Amendment--in preventing foreigners from contributing to American election campaigns? Once again, common sense might suggest that there is, but the issue is not as simple as it appears.

The very fact that the First Amendment provides presumptive protection to Americans' rights to hear foreigners' speech belies the suggestion that the government has a legitimate interest in shielding Americans from "foreign" views. For the ban on foreign speech to be constitutionally justified, something more, such as the appearance or reality of corruption, must be present.

Is that a real worry? Certainly there have been episodes in American history in which foreign powers have attempted to influence our politics. Such influence can legitimately be called corruption--not so much in the sense of a quid pro quo between American elected officials and foreign interests, as in the sense of a corruption of the core democratic ideal.

But even if there is a legitimate or compelling government interest in limiting foreign influences on our politics, it is hardly obvious that an outright ban on campaign contributions and campaign speech is a necessary means of advancing that interest.

Indeed, given the adverse public reaction to reports of foreign influence, a simple requirement that foreigners--like U.S. citizens--be subject to dollar limits in their campaign contributions, and disclosure requirements for their independent expenditures, would probably be more than sufficient to limit foreign influence to tolerable levels.

If treating foreigners on par with U.S. citizens and permanent residents would be sufficient to address the fear of foreign corruption, then the statutory ban could fail the operative test under the First Amendment. After all, the test requires that an infringement on the freedom of speech be "necessary" to the attainment of a compelling interest. And if there were other, narrower ways to address the corruption fear, then a flat ban on contributions by foreigners would unnecessary and thus unconstitutional.

Why The Ban on Foreign Contributions is Hypocritical, Even if Constitutional

In any event, even if the ban on foreign campaign contributions and campaign speech would survive judicial scrutiny under the First Amendment, there are two further reasons to think it is problematic as a matter of policy.

First, democratic theory has always had difficulty with drawing lines that define political boundaries. In an era of globalization, decisions taken by federal and state officials in the United States have consequences all over the world. To be sure, as a practical matter, it makes sense to limit the franchise to those with the strongest ties to the relevant political community; the notion of representative government would completely unravel were we to permit everyone in the world to vote in every election in the United States.

But there are few practical obstacles to extending the same free speech rights to foreigners that we extend to Americans. And speech rights have traditionally encompassed the right to make at least some campaign contributions as well.

Indeed, we might think that precisely because foreigners are denied the right to vote in American elections that may profoundly affect them, they should have their freedom of speech rights zealously protected--as free speech is the only means they have of affecting U.S. policy. Without the right to vote, they should at least have the right to speak.

Second, the ban applies a standard of conduct to foreigners attempting to influence American policy that we do not follow when the tables are turned. As the world's preeminent economic and military power, the United States has not shrunk from seeking to influence political affairs in other parts of the world, even to the point of pursuing "regime change" through force of arms.

To be sure, whatever objections might be raised to American unilateral military action, removing a dictator from power does not amount to interfering with another country's democracy. But our foreign policy has hardly been neutral with respect to electoral outcomes either. As recently as 2002, the U.S. government was funneling hundreds of thousands of dollars to groups seeking the early ouster of Venezuela's elected President.

Whether justified or not, U.S. foreign policy is in some considerable tension with a domestic election regime that forbids foreigners from spending their own resources to tell us how they think we ought to govern ourselves. That tension could--and perhaps should--be resolved by moving our foreign policy in a less interventionist direction. But at least so long as the United States and its citizens play an active role in the political affairs of foreign nations, the ban on foreign campaign contributions and electoral speech will appear hypocritical.


Michael C. Dorf is Professor of Law at Columbia University.

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