Ciara Torres-Spelliscy for TPM:
Meanwhile, a little noticed case that came out during the height of the pandemic could have a big impact on whether and how foreign corporations play in American elections. The Supreme Court in United States Agency for International Development v. Alliance for Open Society International, Inc. (“Open Society II”), a case completely unrelated to elections, decided that “[i]n short, plaintiffs’ foreign affiliates are foreign organizations, and foreign organizations operating abroad have no First Amendment rights.”
Foreign nationals (the human kind) have long been barred from spending in U.S. elections under 52 U.S.C. § 30121. That is why election law experts had their hair on fire about the question of Russian interference the 2016 election. And even the Roberts Supreme Court in a case called Bluman v. FEC upheld the constitutionality of the ban on foreign nationals’ spending money in American elections.
But the law has been as clear as mud between 2010’s Citizens United and 2020’s Open Society II about whether that foreign ban naturally applied to foreign corporations as well as humans. In two cases, the state of California and the FEC took the position that the foreign ban did apply to foreign corporations. In the California case, a foreign pornographer spent in an LA election about mandated condom usage in porn. (He was against it.) He and his foreign company spent illegally in that LA election. California went after him and he had to pay a $61,500 fine. Then in the 2016 election a foreign company called American Pacific International Capital spent illegally $1.3 million in support of Jeb Bush’s failed effort to become president. The FEC issued a civil fine to the corporation of $550,000.
While Congress is going nowhere fast in passing elections reform, including ones that would keep foreign meddling in elections at bay, states and localities have been doing their best to keep foreign corporate money out of their elections. For example, under a Washington State law that went into effect in 2020 “[n]o contribution, expenditure, political advertising, or electioneering communication may be made or sponsored by a foreign national, financed in any part by a foreign national, or have a foreign national involved in the decision-making in any way.” Similar laws were passed in North Dakota and New Hampshire.