'Juris' Articles

Citizens United: Does it apply to foreign corporations?

A friend of mine brought up an interesting point in an interesting way.   Basically, he inquired as to whether Citizens United will permit foreign corporations to spend their money to run political commercials, and then admitted he felt ill at the thought.  I agree.

Luckily, and somewhat hopefully, I believe the answer is as follows:

First, there is currently federal law that was untouched by the Citizens United decision that is very broad and specifically covers this issue.  Section 441e(a) of title 2 of the United States Code states that: “It shall be unlawful for . . . a foreign national, directly or indirectly, to make — (A) a contribution or donation of money or other thing of value, or to make an express or implied promise to make a contribution or donation, in connection with a Federal, State, or local election; (B) a contribution or donation to a committee of a political party; or (C) an expenditure, independent expenditure, or disbursement for an electioneering communication [the political ads at issue in the Citizen United case].”  2 U.S.C. § 441(e) (emphasis added).  Further, this section defines “foreign national” as, among other things, “a foreign principal . . . , except that the term ‘foreign national’ shall not include any individual who is a citizen of the United States.”   2 U.S.C. § 441(e).  After flipping to title 22, we learn that “foreign principal” includes foreign individuals, governments, foreign political parties, and partnerships, associations, corporations, organizations, or other combination of persons organized under the laws of or having its principal place of business in a foreign country.  22 U.S.C. § 661.

Thus, these laws state that a corporations that are not organized in, and with a principal place of business in, the United States cannot, directly or indirectly, run ads for or against a politician.  Then, why did Obama mention this issue during his State of the Union?  Maybe it was his fear that foreign corporations would use their subsidiaries in the United States to run such ads.  Tenuous at best.

Further, the Supreme Court in Citizens United addressed this issue.  In writing for the majority, Justice Kennedy stated that:  “[w]e 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.”  Based on the tenor of this opinion, it appears that the Supreme Court would not have any issue with finding that the Government has a compelling interest in limiting foreign influence over our political process.  That is the standard necessary for the government to circumvent free speech.

Fear not from foreign corporations, our government has it covered.

Add comment February 2nd, 2010

Save the Cap — Save the NFL!

[January 26, 2010. New York.] This past weekend’s NFC Championship game involved a team from Minnesota and a team from New Orleans.  Yet, there was an estimated 57.9 million people watching.  (And that happened with Joe Buck in the booth!)  This is the highest number in a non-Super Bowl game since “The Catch” in 1982 — and the highest number of any non-Super Bowl television show since the last episode of Seinfeld.  Truly amazing, considering the game was sloppy (frustrating to most football fans),  and included bad calls and more calls for an NCAA overtime rule.

Hopefully, Roger Goodell and DeMaurice Smith do not see these numbers.   The current collective bargaining agreement between the NFL (represented by Goodell) and its players (represented by Smith) will expire at the end of the 2010 season.  (That is next season.)

As for some background, the NFL has a salary cap.  Hence, we have a Super Bowl between Minnesota and New Orleans, and not between the Yankees and the Phillies.   The cap is set to expire this year.   Besides pushing communism out of the NFL, this will be a huge shock to the NFL system.   Brady will make more than Oprah.   Kickers will buy houses.  Quarterbacks will actually buy cars to their linemen; not just say they will.  And Goodell will not allow this.  A lockout will ensue.  What would those 50+ million people do?

Add comment January 26th, 2010



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