More on Foreign Money, Citizens United, and President Obama’s Statement

I’ve gotten some pushback on my claim that part of President Obama’s statement regarding the 5th anniversary of Citizens United was false. The arguments state that foreign money in fact may be coming into our elections, either in the form of undisclosed “dark money” going to 501(c) or other groups, or through American subsidiaries of foreign corporations, which are allowed to spend corporate funds, so long as the decision is made only by the American subsidiary.

Both of those facts do not alter my view that what the President said is false.  Take a look at the key aspect of the statement:

 “But five years ago, a Supreme Court ruling allowed big companies – including foreign corporations – to spend unlimited amounts of money to influence our elections.”

In fact, five years ago, in Citizens United the Court expressly refused to rule on whether a ban on foreign money in elections (individual, corporate, or otherwise) could be banned in elections. It left the foreign spending ban in place. So Citizens United did not allow “foreign corporations” to “spend unlimited amounts of money to influence our elections.”

A few years later, in the Bluman case, the Supreme Court affirmed without opinion a lower court ruling upholding the ban on foreign money (including foreign corporate money) in our elections.

So the Supreme Court in Bluman did not allow “foreign corporations” to “spend unlimited amounts of money to influence our elections.”

The Court in Citizens United also upheld pretty broad disclosure rules for independent spending and other election-related spending.

So to the extent that “dark money” rules are allowing foreign money in, that’s on Congress (or the FEC or the IRS) for that, or it is based on lack of enforcement. And presumably, under Bluman, Congress could ban foreign spending by American subsidiaries of corporations.  Congress could also ensure that foreign individuals do not set up sham domestic corporations to engage in election spending.  All of that is on the political branches, not the Supreme Court.

There’s a reason Politifact rated President Obama’s earlier statement about Citizens United allowing foreign money into American elections “mostly false:” because it is.

Because it is.

I find myself in the odd position of defending the Supreme Court in Citizens United, a case I find profoundly wrong. But there is enough to criticize about the case without resorting to hyperbole or worse.

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