Analysis of Smintheus’ solution to Citizens United v. FEC

A diarist named Smintheus posted on unbossed.com a very quick and simply remedy for this power-grab by corporations;

Congress should prohibit any corporation from engaging in this new political spending if it has any non-American shareholders, or owners. Because after all, foreigners have no 1st amendment protections.

This brilliant idea was picked up by PLS who posted the diary "How to hoist the SCOTUS on their own petards!!!" http://www.dailykos.com/storyonly/2010/1/23/829291/-How-to-hoist-the-SCOTUS-on-their-own-petards !!!  on Daily Kos. This stroke of genius not only undoes SCOTUS' treasonous decision, it seriously weakens the hold corporations CURRENTLY have over our democracy.

This is AN EXCELLENT way to punish SCOTUS and the Republicans for attempting a coup of our government on behalf of corporations.

Here is the statute upon which the tactic succeeds;

U.S. Code  § 441e. Contributions and donations by foreign nationals

http://www.law.cornell.edu/uscode/2/usc_sec_02_00000441---e000-.html 

(a) Prohibition

It shall be unlawful for—

(1) 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 (within the meaning of section 434 (f)(3) of this title); or

(2) a person to solicit, accept, or receive a contribution or donation described in subparagraph (A) or (B) of paragraph (1) from a foreign national.

(b) “Foreign national” defined

As used in this section, the term “foreign national” means—

(1) a foreign principal, as such term is defined by section 611 (b) of title 22, except that the term “foreign national” shall not include any individual who is a citizen of the United States; or

(2) an individual who is not a citizen of the United States or a national of the United States (as defined in section 1101 (a)(22) of title 8) and who is not lawfully admitted for permanent residence, as defined by section 1101 (a)(20) of title 8.

 Here is the above mentioned section 434 (f)(3)

 http://www.law.cornell.edu/uscode/uscode02/usc_sec_02_00000434----000-.html#f_3

3) Electioneering communication

For purposes of this subsection—

(A) In general

(i) The term “electioneering communication” means any broadcast, cable, or satellite communication which—

(I) refers to a clearly identified candidate for Federal office;

(II) is made within—

(aa) 60 days before a general, special, or runoff election for the office sought by the candidate; or

(bb) 30 days before a primary or preference election, or a convention or caucus of a political party that has authority to nominate a candidate, for the office sought by the candidate; and

(III) in the case of a communication which refers to a candidate for an office other than President or Vice President, is targeted to the relevant electorate.

(ii) If clause (i) is held to be constitutionally insufficient by final judicial decision to support the regulation provided herein, then the term “electioneering communication” means any broadcast, cable, or satellite communication which promotes or supports a candidate for that office, or attacks or opposes a candidate for that office (regardless of whether the communication expressly advocates a vote for or against a candidate) and which also is suggestive of no plausible meaning other than an exhortation to vote for or against a specific candidate. Nothing in this subparagraph shall be construed to affect the interpretation or application of section 100.22(b) of title 11, Code of Federal Regulations.

Piecing together the most salient parts of the above statute, we have the following;

It shall be unlawful for a foreign national, directly or indirectly, to make a contribution in connection with a Federal, State, or local election, or expenditure for an electioneering communication.  The term “electioneering communication” means any broadcast, cable, or satellite communication which refers to a clearly identified candidate for Federal office, is made within 60 days before a general, special, or 30 days before a primary or preference election.

The limiting phrase in this law is “which refers to a clearly identified candidate for Federal office.” Because the Citizens United v. FEC ruling refers to non-identified candidate communications, what Congress needs to do is extend this statute to include ANY elections-related communications.  An example of why this extension seems very reasonable would be in order to prevent a foreigner from an oil producing country from bombarding U.S. television shows with ads that claim “Global warming is just a hoax; keep buying our oil.”

Smintheus’ solution seems very promising.  We should explore it, and if it proves solid, quickly take action. 

Tags: Citizens United v. FEC, Supreme Court, campaign finance (all tags)

Comments

2 Comments

According to this analysis

which I hope is right, it would also disallow the corporate pacs currently in existence as well as any indirect (such as a coroporation contributing to Chamber of Commerce) contributions of any source from any listed copporation - 100% of which have stopckholders from all over the globe.

by STUBALL 2010-01-24 04:21AM | 0 recs
Well, that would require

some sort of bony structure running vertically from the head to, say, the torso which would allow Congressional members to remain erect long enough to clearly articulate "yea" or "nay" on said policy.  I heard their working on such a structure in Europe.

by the mollusk 2010-01-25 01:45PM | 0 recs

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