John Martin has posted “Regulating Foreign Political Advocacy,” forthcoming in the North Carolina Law Review, on SSRN. Here’s the abstract:

Foreign nationals can presently spend unlimited sums of money on political communications in the United States, including donations to issue-advocacy groups, all while remaining anonymous. This situation is not a product of legislative inaction. Rather, it stems from a 2011 federal court decision that narrowly construed a federal law banning foreign-funded campaign finance. Foreign nationals—including foreign governments—thus remain free to spend billions of dollars to influence our elections through political advocacy so long as they avoid express support for or opposition against electoral candidates. This reality raises many legitimate concerns about self-governance, corruption, and national security, and has given rise to calls for further regulation. Yet, in our age of systematic judicial deregulation of campaign finance law, we cannot presume any law is safe from challenge.

This Article accordingly examines whether legislatures may constitutionally restrict this practice of “foreign political advocacy,” and if so, to what degree. To do this, the Article first identifies theoretical and doctrinal support for a First Amendment right of Americans to receive foreign speech, and asserts that restrictions on foreign political advocacy would burden this right. At the same time, it recognizes a compelling governmental interest in preserving American democratic self-government that likely extends to regulations on foreign political advocacy.

Invoking such a compelling interest, however, itself raises questions about whether foreign political advocacy is wholly bad for self-government. On the one hand, excessive foreign influence over our political discourse may partially usurp control over governance from the American people. Yet, hearing foreign perspectives on our politics can also serve an epistemic function for American democracy by better exposing our electorate to the state of the world, in turn leading to more well-informed decision-making at the polls.

The Article works through these considerations, in part employing an original survey designed to assess to what extent voting-age Americans value information received via foreign political advocacy. Survey results were telling, indicating that many Americans may indeed incorporate foreign political advocacy into their voting decisions. The Article therefore concludes that while legislators may restrict foreign political advocacy, they should refrain from fully prohibiting the practice. Instead, more nuanced regulations are needed that define legitimate participation, set dollar limits, require robust disclosure, and impose effective enforcement mechanisms.