Wednesday, December 14, 2011

Soon, foreign nationals may have more ability to influence elections than you do

At least, that's what I take away from Paul Sherman's Wall Street Journal piece today. There's a case winding through the courts in which foreign nationals—both residents of New York—are suing to be allowed to make contributions to political campaigns, saying they have the right to do so under the First Amendment.

On Dec. 12, the Supreme Court passed up its first opportunity to announce whether it would take the case. Some observers take this as a hint that the court is going to let the D.C. panel's ruling stand. That would be a mistake, and a sharp reversal from the hard line the court has taken recently on speech-squelching campaign-finance laws. 
The panel's ruling stemmed from a conviction that "foreigners" are different and that foreign speech poses a unique threat to the American political system. As to the first point, foreigners surely are different—they can be prohibited from voting, holding elective office, or serving in certain roles of government authority. But none of this has any bearing on whether their speech is entitled to First Amendment protection. After all, corporations are not allowed to vote but, as the Supreme Court recognized in Citizens United, they are still permitted to speak out about candidates.
Sherman is a cheerleader for letting foreign citizens contribute to American campaigns, but man this seems like a bad idea. If the Supreme Court affirms his vision, it will—in recent years—have allowed both corporations and foreign nationals unlimited power to promote American political candidates of their choosing. You know who this crowds out of the game? Actual, flesh-and-blood voting American citizens—folks whose political cash contributions are necessarily small, for the most part, if they exist at all.

I'm not sure how to write this without sounding like a paranoid crank. I really don't believe that free speech is a zero-sum affair. I'm not a nativist. I do believe that the best answer to bad speech is more speech.

But yeah, I'm concerned that a group of wealthy citizens of China or Israel or Russia could get together and bundle their contributions to tip the balance of an American presidential election. I'm concerned that if money equals speech, then it's often impossible to answer bad speech with more speech in any meaningful way. And I'm concerned that—again—actual flesh-and-blood regular American citizens are going to wind up the least influential players in the political process.

On the last count, it's possible that's already happened. But it should be resisted at each and every turn.

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