Barbara McQuade, former U.S. Attorney and now University of Michigan Law Professor, recently remarked that the reason foreigners (whether in the case of individuals, governments, or corporations) cannot make contributions to candidates in American elections is that they are likely to have their own country’s interest in mind rather than that of the U.S. Of course, some countries have an interest in outing Donald Trump and many of us think that would be in the interests of the United States. But precluding their intervention makes sense because they are not members of the body politic.
It is worth observing that the same arguments apply to business corporations. As C. Edwin Baker argued, business corporations are obligated to seek profits without regard to the public interest. Moreover, these corporations are not members of the body politic. Long standing campaign finance law recognized this until the Supreme Court stepped into outer darkness with its Citizens United decision.
Do you recall when Justice Alito shook his head no during President Obama’s State of the Union Message? Obama had criticized the Citizens United decision observing in part that it would permit foreign corporations to intervene in American elections.
In fact, Alito was right. Citizens United does not permit such intervention. Incredibly, however, it leaves the question open. Hopefully, the Court will not take one more step into the darkness.
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