Foreign National Influence, Foreign National Interference

December 15, 2016
posted by Bob Bauer

In 1968, the Nixon presidential campaign successfully persuaded the South Vietnamese government to scuttle peace talks with the North. The goal was to end any possibility of an election-eve accord that would boost the prospects of the Democratic presidential nominee, Hubert Humphrey. Candidate Nixon and his agents assured the South Vietnamese, who took the deal, that a Nixon presidency would better protect their interests. This was a glaring case of foreign interference with elections. The election turned out to be close and the intervention was very plausibly a factor in the outcome. See, e.g., Tim Weiner, One Man Against the World: The Tragedy of Richard Nixon 19-26 (2015).

This is the kind of “interference” in an election that Congress is preparing to investigate. It remains to be seen whether the inquiry will eventually become more far-ranging-- whether it will also examine other forms of foreign influence over the electoral and policy processes that are less brazen but still consequential.

For example, the Federal Election Commission recently could not agree on strengthened restrictions on campaign spending that serves foreign interests. Foreign nationals are prohibited generally from making contributions or expenditures in federal elections, but the rules are porous. Companies controlled by foreign nationals, including those directly or indirectly controlled by foreign governments, may establish PACs and fund campaigns with money contributed by their American executives. The law prohibits foreign nationals associated with the ownership or management of the company from directing or indirectly participating in these funding decisions. The enforcement challenge is obvious: how to capture this “participation,” which may include oral directives or suggestions that are not easily discovered. Beyond this, Americans in the employ of the wholly controlled USA subsidiary might guide their funding decisions by close reference to what they believe or know to be their foreign owners’ interests and preferences.

Professor Michael Morley looks to campaign finance jurisprudence as a guide to what the Supreme Court might do in the Evenwel person-one vote case. He argues that the Court has spoken decisively to the question of whether of certain ineligible voters--foreign nationals—have a right to participate in democratic self-government.  In Bluman v. Federal Election Commission, a three-judge court decision that the Justices summarily affirmed, the court held that foreign nationals may be barred from spending money, through contributions or independent expenditures, to influence elections.  800 F. Supp. 2d 281 (2011).  It follows from that, Professor Morley concludes, that foreign nationals need not be included in the population count on which state legislative apportionment is based.

Morley's use of campaign finance law is intriguing, and he finds this perspective missing from all the briefs filed with the Court in Evenwel.  But he did miss one, the Democratic National Committee's, which explicitly questions how US citizens in eligible to vote could be excluded from apportionment arithmetic – – that is, read out of the formally represented political community – – while enjoying a constitutional right to contribute to the same candidates who are free to reject them as constituents. (Note: I am on the brief, with other Perkins colleagues).  This is the case of minor children, 17 years and younger.  In McCain-Feingold, Congress moved to prohibit minors from making contributions at all, only to be blocked by the Court in McConnell.  Now minors remain free to contribute as a constitutional right, provided that the contribution is made knowingly and with their own money. Should the Court conclude that states may disregard minor children for apportionment purposes, it will have drawn the unappetizing picture of a representative democracy in which these young citizens receive representation only for purchase.

Morley agrees that this is an untenable result, and he would locate the line there, at US citizenship, and let Bluman do the work of keeping out foreign nationals (other than lawful permanent residents).  The next question is whether campaign finance jurisprudence translates all that neatly, and as Morley presents it, into the apportionment context.