Thursday, July 13, 2017

Trump Jr. and Citizens United

by Michael Dorf

Despite its title, this is not an essay about whether Donald Trump Jr. violated federal election law by "solicit[ing]" a "thing of value" from "a foreign national" when he eagerly agreed to meet with a Russian lawyer acting on behalf of the Russian government for the purpose of receiving damaging information about Hillary Clinton's supposed Russian ties. I accept both that it is a somewhat unresolved question whether such information constitutes a "thing of value" under the statute and also that there is enough authority for the view that information alone can be a thing of value so that prosecuting Trump Jr. (and Jared Kushner and Paul Manafort) for their meeting with Natalia Veselnitskaya knowing what they knew would not constitute such a surprising interpretation of the statute as to violate the so-called rule of lenity (under which ambiguities in a criminal statute are resolved in favor of the defendant).

Nor is this an essay about whether construing federal election law to forbid the receipt of valuable campaign-related information from a foreign government agent--even if it was lawfully gathered, which Trump Jr., Kushner, and Manafort had no reason to assume Veselnitskaya's proffered information was--can be forbidden consistent with the First Amendment. I agree with Rick Hasen that if there are free speech concerns with some applications of the law under consideration (52 U.S.C. § 30121), the right approach would be either to construe the law so as not to reach such applications or to invalidate the statute as applied, not on its face. Thus, no one should read this essay as a defense of Trump Jr. or anyone else in the Trump campaign.

So what is this essay about? Simply put, I want to suggest that in a perfect world Section 30121 would distinguish between foreign governments involving themselves in U.S. elections and foreign nationals doing so. Unfortunately, we don't live in that perfect world because of the Supreme Court.

What is the rationale for our law forbidding foreigners from meddling in our elections? As Prof. Hasen notes in the Slate piece linked above, unlike limitations on domestic campaign finance--which serve an anti-corruption purpose--the foreign contribution ban serves a different (or additional) purpose: It aims to preserve our democracy for, well, us--meaning Americans. That explains why, during the 2010 State of the Union, Justice Alito mouthed "not true" when President Obama characterized the Citizens United decision as "open[ing] the floodgates for special interests--including foreign corporations--to spend without limit in our elections." Justice Alito presumably understood the holding of the case as having no necessary bearing on the foreign money limit, because Citizens United fell within a line of cases construing the government's anti-corruption interest quite narrowly; as the foreign donation limits do not rest on the anti-corruption interest, they do not necessarily fall within the Citizens United rationale.

If that was indeed the thinking behind Justice Alito's 2010 "not true," he had a fair point. At the same time, however, it is worth asking whether, in a world without Citizens United (and also without some of the other campaign-finance cases which apply the same basic framework), it might make sense to rewrite Section 30121. Suppose that the Court had allowed Congress to forbid or seriously restrict corporate independent expenditures (contrary to Citizens United) and to cap individuals' independent expenditures (contrary to the so-called billionaire's exception that goes back to Buckley v. Valeo). Would there then be any need for Section 30121?

In most circumstances, probably not. Foreign corporations as well as domestic corporations could be forbidden from participating in politics using general treasury funds; they could not run ads for or against specific candidates, nor could they provide campaigns with Kompromat. Under the prong of Buckley that allows Congress to limit individual campaign contributions, foreign individuals could be subject to those same limits. And in this bizarro-world, there would be no independent expenditure loophole, so foreigners would be subject to the same (fairly strict) limits as Americans.

To be sure, one might think that even stricter limits--specifically the ban of Section 30121--ought to apply to foreigners, but I regard that as difficult to justify. Foreigners actually do have interests in our elections, because decisions made by governments in the U.S. affect foreigners. Indeed, foreigners are already at a serious disadvantage relative to Americans in that the foreigners don't vote. Subjecting them to the same--in this alternative universe, fairly strict--campaign limits would hardly risk overwhelming our politics with foreign influence.

Foreign governments, however, stand on a different footing. Whereas robust campaign finance limits applicable to both foreign and domestic individuals might suffice to prevent foreign domination or corruption of our electoral system, foreign sovereigns pursuing their own aims could really derail American democracy, even if the dollar value of their activity were kept to a low limit. Foreign governments are, in this view, more like corporations in the view of the Citizens United dissenters (which triumphs in my alternative universe). Their activities would appropriately be banned altogether.

And thus we circle back to Trump Jr., Kushner, and Manafort. Even in a world without Citizens United, one would want their specific conduct--soliciting valuable aid in a presidential election from an agent of a foreign government--to be forbidden.

To put the point somewhat differently, if instead of arranging a meeting with Veselnitskaya acting on behalf of the Kremlin, Trump Jr., Kushner, and Manafort had instead met with a private citizen from Canada who gave them a flattering photograph of Trump Sr. in the hope that the photograph could be used in the campaign, they would be equally guilty (or not) of violating Section 30121. But the hypothetical meeting would be a technical violation of a law that could, in a perfect world, be narrowed considerably. By contrast, their actual conduct would be appropriately forbidden in this and every other plausible alternative universe.

Postscript: By that last sentence, I do not mean to imply that we are living in a plausible universe.


Shag from Brookline said...

Imagine a plausible Trump campaign slogan: "AMERICA FIRST! THANKS, RUSSIA!"

Joe said...

Bluman v. Federal Election Commission summarily [full decision: "The judgment is confirmed"] uphold a regulation discussed this way over at SCOTUSBlog:

Issue: Whether Congress violates the First Amendment by making it a crime for individuals who lawfully reside in the United States, but are neither U.S. citizens nor “permanent residents” under the immigration laws, to make independent expenditures or campaign contributions in connection with any federal, state, or local election; or whether, as the district court held, the ban satisfies strict scrutiny as a “piecemeal” attempt to reduce the “influence” on “how voters will cast their ballots” of aliens whom Congress may suspect of lacking “primary loyalty” to the nation.

There are still ways foreign money is involved in U.S. elections:

Anyway, I agree foreign nationals have some interests here. And, under Citizen United's rhetoric, to the extent they promote ideas that further U.S. citizen interests, including knowledge of public affairs, they would overlap with our own.

Honestly, foreign nations has interests too, but there are countervailing interests. As there are in campaign finance generally, though Citizen United balances things a tad bluntly as Hasen et. al. argue.

Stuart McPhail said...

Interesting take on Bluman's interaction with Citizens United.

Have a slightly different take on their interaction here:

Asher Steinberg said...

I don't think this works for a couple reasons. First, you seem to be unaware that Section 30121 does, in fact, ban independent expenditures. Bluman, which the Court summarily affirmed, was decided after Citizens United and held that Section 30121 constitutionally bans foreigners' independent expenditures; not only isn't the statute just about contributions, Bluman wasn't either. So there is no independent-expenditure loophole where foreigners are concerned, even in our post-Citizens United world.

Second, you seem to think that because of Citizens United, there's some obstacle to regulating foreign corporations' expenditures. But again, Section 30121 bans foreign corporations' independent expenditures; it makes it "unlawful for a foreign national, directly or indirectly, to make . . . an independent expenditure," and cross-references a definition of foreign national in 22 U.S.C. 611 that includes corporations either organized under foreign law *or* that have their principal place of business in a foreign country. And of course, though Bluman just involved two individuals, nothing in Citizens United says it's worse to regulate corporations' independent expenditures than individuals'; it just places the two on equal footing.

Third, it seems to me that even in this imaginary world you posit, where Citizens United has prevented Congress from regulating foreign corporations and governments' independent expenditures and where Section 30121 doesn't regulate them, there would still be a need for Section 30121, and that Section 30121 would be addressed to a quite different purpose. Before Congress ever regulated independent expenditures of foreign nationals, as part of McCain-Feingold, it banned foreign individuals' contributions. Of course foreigners have an interest in who the president of the most powerful nation in the world is, but I don't see that it follows that they have a right to contribute to presidential candidates, or at least I don't see that it follows that they have a right that overcomes the interests in banning their contributions. Besides the potential for individual/foreign government coordination, or for autocratic foreign governments to encourage their citizens to contribute to a preferred candidate - I can certainly imagine, in an alternate world where foreign contributions are allowed, Russia Today encouraging mass small-ruble donations to Trump - would we want a world where, say, Israelis concerned about our electing a President who's maximally friendly to Israel can contribute millions in the aggregate to one of our major candidates? Wouldn't this tend to engender quid pro quo foreign policy, especially with our more corrupt and unprincipled politicians? I would encourage you to look at Bluman if you haven't, which, besides explaining Section 30121's history and what it actually does, offers a robust justification for the foreign-contribution ban. It's by Judge Kavanaugh so it's not exactly the work of a campaign-finance dove.

Michael C. Dorf said...

Asher, with due respect, I don't know why you think what you do about what I wrote.

I am aware that 30121 does, in fact, ban independent expenditures. It's a very short statutory provision. That's hard to miss. What I say in this piece is that in a post-CU world, you wouldn't need 30121 to get at FOREIGN corporate independent expenditures, because they would be subsumed within a valid prohibition on ALL corporate expenditures. You also misread me to say that foreigners have a constitutional right to participate in our elections. All I said was that as a matter of policy we might not want to ban them. You offer valid countervailing policy reasons for maintaining the ban, although I think that the scenarios you articulate are unlikely to materialize. If they did, the ban could be reinstated.

Judge Kavanaugh's opinion is linked in the Hasen piece I linked, so I was aware of it too.

Asher Steinberg said...

But we don't, even with CU, need to ban donations by foreign individuals to get at foreign corporate independent expenditures. The only thing that CU changes is that it requires foreign corporations to be singled out. It doesn't require us to ban foreign expenditures generally to get at some subset of them, so just the same rewriting that you invite is perfectly possible in our world. To wit, you say that "in a perfect world Section 30121 would distinguish between foreign governments involving themselves in U.S. elections and foreign nationals doing so. Unfortunately, we don't live in that perfect world because of the Supreme Court." But your distinction is perfectly possible under CU because CU has been held, summarily, to have no application to any foreign entity whatsoever; Congress can regulate whatever subset of foreign entities and individuals it chooses. Ergo, the Court neither caused 30121 to look the way it does (obviously, as it was enacted as part of the statute that was partly invalidated in the case you're complaining about) nor has prevented 30201 from drawing this distinction in the future. The only thing Citizens United in tandem with Bluman does block is abandoning a foreign/domestic distinction in campaign-finance, repealing 30121, and getting at some subset of what it covers under a broader statute, but you don't really seem to want that as you recognize that foreign governments, at least, present particular difficulties. So the only connection between Citizens United and the state of foreign campaign-finance regulation is that overruling it would theoretically make possible a state of campaign-finance regulation that never existed in the several decades of campaign-finance regulation preceding Citizens United, where foreign contributions and expenditures are treated only as an undifferentiated subset of regulated individual/corporate/governmental expenditures, though Congress would never do that and it would make no sense to write a statute that dealt with foreign governments and our own federal/state/local governments in the same terms. Other than ruling out this very strange imaginary statute, which is only formally different from what you want (if you even want it - initially you suggest narrowing, not repealing, 30201), 100% of your substantive preferences for foreign campaign-finance regulation are achievable under existing law.

Michael C. Dorf said...

Ah, okay, now I understand your point. I think you're right that I overstated the role of CU for clickbait purposes. It's true that even w/ CU, my combo w/r/t foreigners is possible, so fair enough. What I meant was that in a world w/o CU, we wouldn't need to do that THROUGH a special code provision applicable to foreign entities like 30121--except for foreign govts.

Citizen Jeff said...

52 U.S. Code § 30121 is about a foreign national making a donation to a political campaign. Is there a statute that prohibits Don Jr. from paying the Russian attorney for information?