Note

Reclaiming the Right to Know: The Case for Considering Derivative Benefits in FOIA’s Personal Privacy Exemptions

The Freedom of Information Act provides the public with a statutory right to access troves of government information with nine limited exemptions. Two of those exemptions—Exemption 6 and Exemption 7(C)—protect the personal privacy of people mentioned within the government’s files, allowing the government to withhold personally identifiable information if disclosure would cause an “unwarranted” invasion of privacy. Under the Supreme Court’s precedent, courts must conduct a balancing test to determine whether disclosure is unwarranted, weighing the privacy interests of the individuals mentioned in the requested documents against the public’s interest in disclosure. The Supreme Court has clarified that disclosure can only serve the public interest if disclosure will reveal something about the government’s actions, thus allowing the public to oversee the government’s performance.

The Supreme Court has acknowledged that it has left a critical aspect of the balancing test undefined, however. It has never explicitly decided whether disclosure must directly and immediately reveal something about the government’s conduct, or whether the public interest can be served derivatively by using the requested information to uncover additional information outside of the requested documents that reveals the government’s actions.

This Note argues that the Supreme Court actually has answered this question and that courts must consider derivative benefits as part of the public interest. The Supreme Court has repeatedly, though tacitly, considered indirect and derivative harms to personal privacy. After identifying the Court’s tacit pattern, this Note argues that the statute’s language and the Court’s own logic require derivative benefits to receive the same treatment as derivative harms. Finally, this Note examines how this problem has been dealt with by the federal circuits and identifies the fault lines along which the circuits are beginning to split.

Introduction

Even the most popular federal agency in the country1 1.Lydia Saad, Postal Service Still Americans’ Favorite Federal Agency, Gallup (May 13, 2019), https://news.gallup.com/poll/257510/postal-service-americans-favorite-federal-agency.aspx [https://perma.cc/UL33-X7N7].Show More is not without its controversies. When President Trump named Louis DeJoy Postmaster General, Democrats quickly raised objections about his fitness for the office, based on financial conflicts of interest and an alleged history of illegal political contributions.2 2.Alison Durkee, Postmaster General Louis DeJoy Should Resign Over ‘Obvious Financial Conflicts of Interest,’ Experts Testify, Forbes (Sept. 14, 2020), https://www.forbes.com/sites/alisondurkee/2020/09/14/postmaster-general-louis-dejoy-should-resign-over-obvious-financial-conflicts-of-interest-experts-testify/?sh=7acc7503147c [https://perma.cc/D9ZC-X7DF].Show More In a hearing before a House Oversight subcommittee, for instance, experts testified that DeJoy held investments worth tens of millions of dollars in private contractors working with the Postal Service, and other witnesses testified that as a private businessman DeJoy had pressured his employees to donate to certain political candidates and then illegally reimbursed them through company bonuses.3 3.Id.Show More

Citizens for Responsibility & Ethics in Washington (“CREW”), a nonpartisan nonprofit dedicated to government accountability, 4 4.About CREW, Citizens for Resp. & Ethics in Wash., https://www.citizensforethics.org/about/ [https://perma.cc/K4YX-W9ZH] (last visited Apr. 14, 2021).Show More decided to investigate DeJoy’s conflicts of interest.5 5.See E-mail from Meredith Lerner, Rsch. Assoc., Citizens for Resp. & Ethics in Wash., to USPS FOIA Officer, Re: Freedom of Information Act Request (Aug. 11, 2020), https://www.citizensforethics.org/wp-content/uploads/legacy/2020/08/2020.08.11-Louis-DeJoy-USPS-FOIA-final.pdf [https://perma.cc/88VT-BTNH].Show More CREW filed a request with the Postal Service under the Freedom of Information Act (“FOIA”), seeking both the agency’s records regarding financial interests from which DeJoy was obligated to divest and records of any communications between DeJoy and the USPS regarding certain stock holdings of his.6 6.Id.Show More

The Postal Service denied the request because it determined that disclosure would not be in the public interest.7 7.Nikhel Sus (@NikhelSus), Twitter (Sept. 9, 2020, 12:38 PM), https://twitter.com/NikhelSus/status/1303734508018110464 [https://perma.cc/Q2UD-2MFD]; Letter from Jessica Y. Brewster-Johnson, Senior Ethics Couns., USPS, to Meredith Lerner, Rsch. Assoc., Citizens for Resp. & Ethics in Wash., Re: FOIA Case No. 2020-FPRO-01619 (Sept. 9, 2020) (on file with author). Nikhel Sus serves as CREW’s Senior Counsel over Complaints & Litigation. Our Team, Citizens for Resp. & Ethics in Wash., https://www.citizensforethics.org/about/our-team/ [https://perma.cc/BSH8-KUCN] (last visited Apr. 4, 2021). Many thanks to Nikhel Sus for providing the complete text of the Postal Service’s denial of the FOIA request.Show More DeJoy, the agency explained, had a personal privacy interest in his financial transactions, bringing the requested records within the scope of FOIA’s Exemption 6. Furthermore, the denial said, CREW “did not provide any information about how release of this record would contribute to the public’s understanding of the operations or activities of the Postal Service.”8 8.Brewster-Johnson, supra note 7.Show More CREW has since filed suit to compel USPS to disclose the records.9 9.See CREW Sues USPS on Louis DeJoy Conflicts, Citizens for Resp. & Ethics in Wash. (Oct. 13, 2020), https://www.citizensforethics.org/legal-action/lawsuits/usps-louis-dejoy-conflicts/ [https://perma.cc/M5AT-85E3].Show More

The Postal Service’s explanation defies common sense. How can the public not have an interest in the head of a federal agency’s potential conflicts of interest? Why did CREW have to justify its request with any public interest, much less one that would “contribute to the public’s understanding of the operations” of the Postal Service? And how can CREW show such an interest in order to justify a request? Those are the questions this Note seeks to answer.

The Freedom of Information Act grants the public a judicially enforceable right to access information gathered and stored by the executive branch of the federal government, with nine limited exceptions.10 10.5 U.S.C. § 552(b)(1)–(9).Show More Two of those exceptions—Exemption 6 and Exemption 7(C)—revolve around personal privacy and permit the government to withhold personally identifiable information from certain types of records if disclosure of those records would constitute “an unwarranted invasion of personal privacy.”11 11.Id. § 552(b)(6), (b)(7)(C).Show More The Supreme Court has found that this requires courts to determine whether to disclose or withhold records based on a balancing test between the public interest in disclosure and the privacy interests of the individuals identified in the records.12 12.See U.S. Dep’t of Def. v. Fed. Lab. Rels. Auth., 510 U.S. 487, 497 (1994).Show More

However, in practice, the Supreme Court’s balancing test is weighted against disclosure. The Supreme Court has gradually expanded the scope of the privacy interests protected by the personal privacy exemptions while narrowing what weighs in favor of the public interest. Under the Supreme Court’s current interpretation, often called the “core purpose doctrine,” there is no public interest in disclosure unless disclosure would shed light on the government’s conduct and activities.13 13.U.S. Dep’t of Just. v. Reps. Comm. for Freedom of the Press, 489 U.S. 749, 773–75 (1989).Show More This narrow conception of the public interest is a fixture of the FOIA landscape, which raises the question of how best to assert a cognizable public interest.14 14.The core purpose doctrine has drawn its fair share of critics, but the Supreme Court shows no signs of revising it. See, e.g., Michael Hoefges, Martin E. Halstuk & Bill F. Chamberlin, Privacy Rights Versus FOIA Disclosure Policy: The “Uses and Effects” Double Standard in Access to Personally-Identifiable Information in Government Records, 12 Wm. & Mary Bill Rts.J. 1, 8–9 (2003); Christopher P. Beall, The Exaltation of Privacy Doctrines Over Public Information Law, 45 Duke L.J. 1249, 1251–52 (1996); Martin E. Halstuk, When Secrecy Trumps Transparency: Why the Open Government Act of 2007 Falls Short, 16 CommLaw Conspectus 427, 428–29 (2008) [hereinafter Halstuk, Secrecy Trumps Transparency].Show More

One central ambiguity remains in the balancing test under the core purpose doctrine: must disclosure of the requested information directly shed light on the government’s conduct, or may it shed light indirectly after a series of intervening causal steps? The Supreme Court has acknowledged, but not answered, the question of what it calls “derivative uses.”15 15.U.S. Dep’t of State v. Ray, 502 U.S. 164, 178 (1991).Show More The U.S. Court of Appeals for the Second Circuit has described derivative use as the idea “that the public interest can be read more broadly to include the ability to use redacted information to obtain additional as yet undiscovered information outside the government files.”16 16.Associated Press v. U.S. Dep’t of Def., 554 F.3d 274, 290 (2d Cir. 2009) (citing Ray, 502 U.S. at 178).Show More For instance, to return to the CREW example, one argument for disclosure based on derivative benefits would be that, while the requested information about DeJoy would not directly show how the USPS was performing its duties, disclosure would indirectly allow the public to better oversee the USPS by further investigating the relationship between the agency’s actions and the Postmaster General’s own financial interests. The idea of derivative benefits recognizes the reality that the personally identifiable information protected by the privacy exemptions will rarely, by itself and directly, give the public a better understanding of government decision making. Nevertheless, derivative benefits can frequently add to the public’s capacity to monitor government performance when combined with other available information or when used for further investigation to uncover new information.

This Note explores the Supreme Court’s interpretation of the personal privacy exemptions and concludes that courts must consider derivative uses when conducting the balancing test. In fact, there are two types of derivative uses, and both must be considered. The first type, derivative benefits, is when the derivative use of requested information advances the public interest. Conversely, derivative harms occur when someone uses the requested information after its disclosure in a way that further invades the privacy of the individuals identified in the records. These two types of derivative use weigh in favor of disclosure and nondisclosure, respectively.

As this Note demonstrates, the Supreme Court has repeatedly factored in derivative harms as justification for nondisclosure without ever explicitly recognizing that it has done so. At the same time, however, the Court has failed to recognize the corresponding value of derivative benefits, though the caselaw implies that there is an appropriate role for derivative benefits in limited circumstances. Because FOIA embodies a pro-disclosure policy, and because there is no principled reason to consider one type of derivative use without the other, courts must consider derivative benefits, just as they follow the Supreme Court’s lead in considering derivative harms.

This Note makes three main contributions to this field. First, while this is not the first piece to advocate for the consideration of derivative uses, it is the first to do so for a narrow conception of derivative uses that is consistent with current Supreme Court doctrine. Broader versions of derivative use, as others have championed, would unrealistically require either the Court or Congress to overrule the core purpose doctrine. Second, this Note brings existing literature up to date by analyzing the impact of the Supreme Court’s latest disclosure case under the personal privacy exemptions. No other article has touched on this topic in any depth for roughly two decades. Finally, this Note is the first to discuss in any detail the treatment of derivative uses by the lower courts. This is critical to understanding the direction the doctrine is developing and is all the more pressing because this issue has the potential to cause a circuit split.

Part I of this Note provides a brief look at the history of FOIA and explains how the Supreme Court interprets the two personal privacy exemptions. Part II examines United States Department of State v. Ray,17 17.502 U.S. 164 (1991).Show More the one case in which the Supreme Court discussed derivative uses directly, while Part III analyzes the implications of the Court’s caselaw after Ray. Part IV lays out how and why courts should consider derivative benefits, and, finally, Part V analyzes the most important derivative use cases at the circuit level and predicts where the circuits are likely to split in the future.

  1. * J.D., University of Virginia School of Law, 2022. I am grateful to Professor Sarah Stewart Ware, who patiently supervised and guided this Note, and to the members of the Virginia Law Review who so diligently edited and improved it. All errors are mine alone. ↑
  2. Lydia Saad, Postal Service Still Americans’ Favorite Federal Agency, Gallup (May 13, 2019), https://news.gallup.com/poll/257510/postal-service-americans-favorite-federal-agency.aspx [https://perma.cc/UL33-X7N7]. ↑
  3. Alison Durkee, Postmaster General Louis DeJoy Should Resign Over ‘Obvious Financial Conflicts of Interest,’ Experts Testify, Forbes (Sept. 14, 2020), https://www.forbes.com/sites/alisondurkee/2020/09/14/postmaster-general-louis-dejoy-should-resign-over-obvious-financial-conflicts-of-interest-experts-testify/?sh=7acc7503147c [https://perma.cc/D9ZC-X7DF]. ↑
  4. Id. ↑
  5. About CREW, Citizens for Resp. & Ethics in Wash., https://www.citizensforethics.org/about/ [https://perma.cc/K4YX-W9ZH] (last visited Apr. 14, 2021). ↑
  6. See E-mail from Meredith Lerner, Rsch. Assoc., Citizens for Resp. & Ethics in Wash., to USPS FOIA Officer, Re: Freedom of Information Act Request (Aug. 11, 2020), https://www.citizensforethics.org/wp-content/uploads/legacy/2020/08/2020.08.11-Louis-DeJoy-USPS-FOIA-final.pdf [https://perma.cc/88VT-BTNH]. ↑
  7. Id. ↑
  8. Nikhel Sus (@NikhelSus), Twitter (Sept. 9, 2020, 12:38 PM), https://twitter.com/NikhelSus/status/1303734508018110464 [https://perma.cc/Q2UD-2MFD]; Letter from Jessica Y. Brewster-Johnson, Senior Ethics Couns., USPS, to Meredith Lerner, Rsch. Assoc., Citizens for Resp. & Ethics in Wash., Re: FOIA Case No. 2020-FPRO-01619 (Sept. 9, 2020) (on file with author). Nikhel Sus serves as CREW’s Senior Counsel over Complaints & Litigation. Our Team, Citizens for Resp. & Ethics in Wash., https://www.citizensforethics.org/about/our-team/ [https://perma.cc/BSH8-KUCN] (last visited Apr. 4, 2021). Many thanks to Nikhel Sus for providing the complete text of the Postal Service’s denial of the FOIA request. ↑
  9. Brewster-Johnson, supra note 7. ↑
  10. See CREW Sues USPS on Louis DeJoy Conflicts, Citizens for Resp. & Ethics in Wash. (Oct. 13, 2020), https://www.citizensforethics.org/legal-action/lawsuits/usps-louis-dejoy-conflicts/ [https://perma.cc/M5AT-85E3]. ↑
  11. 5 U.S.C. § 552(b)(1)–(9). ↑
  12. Id. § 552(b)(6), (b)(7)(C). ↑
  13. See U.S. Dep’t of Def. v. Fed. Lab. Rels. Auth., 510 U.S. 487, 497 (1994). ↑
  14. U.S. Dep’t of Just. v. Reps. Comm. for Freedom of the Press, 489 U.S. 749, 773–75 (1989). ↑
  15. The core purpose doctrine has drawn its fair share of critics, but the Supreme Court shows no signs of revising it. See, e.g., Michael Hoefges, Martin E. Halstuk & Bill F. Chamberlin, Privacy Rights Versus FOIA Disclosure Policy: The “Uses and Effects” Double Standard in Access to Personally-Identifiable Information in Government Records, 12 Wm. & Mary Bill Rts. J. 1, 8–9 (2003); Christopher P. Beall, The Exaltation of Privacy Doctrines Over Public Information Law, 45 Duke L.J. 1249, 1251–52 (1996); Martin E. Halstuk, When Secrecy Trumps Transparency: Why the Open Government Act of 2007 Falls Short, 16 CommLaw Conspectus 427, 428–29 (2008) [hereinafter Halstuk, Secrecy Trumps Transparency]. ↑
  16. U.S. Dep’t of State v. Ray, 502 U.S. 164, 178 (1991). ↑
  17. Associated Press v. U.S. Dep’t of Def., 554 F.3d 274, 290 (2d Cir. 2009) (citing Ray, 502 U.S. at 178). ↑
  18. 502 U.S. 164 (1991). ↑
  19. Hoefges et al., supra note 14, at 9–11 (quoting 5 U.S.C. § 552(f)). The “right” to access information gathered and held by the government is purely statutory. The Supreme Court has rejected the idea that citizens have any legally enforceable right under the Constitution to access government information. Barry Sullivan, FOIA and the First Amendment: Representative Democracy and the People’s Elusive “Right to Know,” 72 Md. L. Rev. 1, 14 (2012). ↑
  20. See Hoefges et al., supra note 14, at 9 n.42. ↑
  21. John C. Brinkerhoff, Jr., FOIA’s Common Law, 36 Yale J. on Regul. 575, 594 (2019) (quoting 5 U.S.C. § 1002 (repealed 1966)); see also Halstuk, Secrecy Trumps Transparency, supra note 14, at 434–35. The government used the “properly and directly concerned” requirement in particular to withhold information. Id. at 434. If the requested information did not pertain to the requestor himself, the government denied disclosure. This effectively excluded all third parties such as journalists and attorneys. Id. ↑
  22. Brinkerhoff, supra note 20, at 594. One famous example, which demonstrates how toothless the disclosure requirements of the APA were, involved the government finding good cause to withhold the contents of telephone books. Id. at 594 n.141 (quoting James E. Hakes, Note, Comments on Proposed Amendments to Section 3 of the Administrative Procedure Act: The Freedom of Information Bill, 40 Notre Dame L. Rev. 417, 436 (1965)). ↑
  23. See EPA v. Mink, 410 U.S. 73, 79 (1973). ↑
  24. Dep’t of the Air Force v. Rose, 425 U.S. 352, 361 (1976) (quoting Rose v. Dep’t of the Air Force, 495 F.2d 261, 263 (2d Cir. 1974)). ↑
  25. See Martin E. Halstuk & Charles N. Davis, The Public Interest Be Damned: Lower Court Treatment of the Reporters Committee “Central Purpose” Reformulation, 54 Admin. L. Rev. 983, 991 (2002). ↑
  26. S. Rep. No. 88-1219, at 8 (1964). ↑
  27. Hoefges et al., supra note 14, at 9–10. ↑
  28. Id. Over the ensuing decades, Congress has amended FOIA a number of times in order to generate more disclosure and twice has done so expressly to overrule the Supreme Court. However, these amendments have not significantly dented the advantage that the government enjoys in court. Brinkerhoff, supra note 20, at 610 (citing Laurence Tai, Fast Fixes for FOIA, 52 Harv. J. on Legis. 455, 456–57 (2015)); see also Halstuk, Secrecy Trumps Transparency, supra note 14, at 427–28 (noting that the OPEN Governance Act of 2007, which amended FOIA, improved access to government-held information in a number of ways but still failed to “address systemic obstacles to a transparent government”). ↑
  29. 5 U.S.C. § 552(a)(3)(A)–(B); Hoefges et al., supra note 14, at 10. ↑
  30. 5 U.S.C. § 552(a)(4)(B). ↑
  31. See Brinkerhoff, supra note 20, at 594. Brinkerhoff argues persuasively that a central reason for FOIA’s failure to promote disclosure to the extent Congress intended is its connection to the APA. The judiciary has interpreted FOIA using an approach similar to administrative common law. This approach runs contrary to the statutory text and employs doctrines that empower the executive, leading to a weakening of FOIA’s presumption in favor of disclosure and giving the government a marked advantage in litigation. This Note does not touch on FOIA’s background of administrative law. Rather, it examines one way in which the Supreme Court has unduly narrowed the two personal privacy exemptions. Still, it is worth bearing in mind that there are larger nondisclosure forces at work that apply to all of FOIA and not simply the two exemptions discussed here. ↑
  32. 5 U.S.C. § 552(b)(1)–(9). ↑
  33. Id. § 552(b)(6). ↑
  34. Id. § 552(b)(7)(C). ↑
  35. See U.S. Dep’t of Def. v. Fed. Lab. Rels. Auth., 510 U.S. 487, 496–97 n.6 (1994) (noting that the differences between the two exemptions are “of little import” because they differ only in “the magnitude of the public interest that is required” to justify disclosure). ↑
  36. See U.S. Dep’t of Just. v. Reps. Comm. for Freedom of the Press, 489 U.S. 749, 756 (1989). ↑
  37. 5 U.S.C. § 552(b)(6). ↑
  38. Id. § 552(b)(7)(C). ↑
  39. Id. § 552(b)(6), (b)(7)(C). ↑
  40. See Reps. Comm., 489 U.S. at 756. Congress’ initial draft of Exemption 7(C) contained the same language and therefore offered the same level of privacy protection as Exemption 6, but President Gerald Ford insisted on more stringent protections in return for his support for the bill. Hoefges et al., supra note 14, at 13 n.67 (citing 120 Cong. Rec. 17,033 (1974); H.R. Rep. No. 93-1380, at 4 (1974) (Conf. Rep.)). ↑
  41. See Hoefges et al., supra note 14, at 11–12 (citing H.R. Rep. No. 89-1497, at 11 (1966)). ↑
  42. H.R. Rep. No. 89-1497, at 11 (1966). ↑
  43. See U.S. Dep’t of Just., Department of Justice Guide to the Freedom of Information Act: Exemption 7(C), at 1–2 (2019), https://www.justice.gov/oip/page/file/1206756/download [https://perma.cc/VE85-4NWX] [hereinafter DOJ Guide to Exemption 7(C)]; Nat’l Archives & Recs. Admin. v. Favish, 541 U.S. 157, 166 (2004). ↑
  44. S. Rep. No. 89-813, at 9 (1965). ↑
  45. Hoefges et al., supra note 14, at 12–13. ↑
  46. See U.S. Dep’t of the Air Force v. Rose, 425 U.S. 352, 361 (1976). ↑
  47. See Brinkerhoff, supra note 20, at 579–82. ↑
  48. See Rose, 425 U.S. at 380–81 (creating a balancing test which weighs public interests against personal-privacy interests); U.S. Dep’t of Just. v. Reps. Comm. for Freedom of the Press, 489 U.S. 749, 776–80 (1989) (defining the scope of public interests and privacy interests). ↑
  49. U.S. Dep’t of State v. Wash. Post Co., 456 U.S. 595, 602 (1982); U.S. Dep’t of Just., Department of Justice Guide to the Freedom of Information Act: Exemption 6, at 4 (2019), https://www.justice.gov/oip/page/file/1207336/download [https://perma.cc/L8BW-S4DL] [hereinafter DOJ Guide to Exemption 6]. ↑
  50. 5 U.S.C. § 552 (b)(6). ↑
  51. Wash. Post, 456 U.S. at 601 (noting that Exemption 6 “surely was not intended to turn upon the label of the file which contains the damaging information”); see also N.Y. Times Co. v. Nat’l Aeronautics & Space Admin., 920 F.2d 1002, 1004, 1009–10 (D.C. Cir. 1990) (en banc) (holding that an audio tape of the final moments of the astronauts aboard the Challenger space shuttle qualified as a “similar file” under Exemption 6). ↑
  52. Wash. Post, 456 U.S at 602. ↑
  53. Id. at 600–02 (rejecting the argument that “similar files” only protect intimate information). How to interpret and apply Exemption 6’s threshold requirement had been a point of contention among the lower courts for some time. A number of lower courts had held that records must contain intimate information before they could fall within the scope of “personnel and medical files and similar files.” See Hoefges et al., supra note 14, at 20. ↑
  54. 5 U.S.C. § 552 (b)(7)(C). ↑
  55. See Lauren Bemis, Note, Balancing a Citizen’s Right to Know with the Privacy of an Innocent Family: The Expansion of the Scope of Exemption 7(C) of the Freedom of Information Act Under National Archives & Records Administration v. Favish, 25 J. Nat’l Ass’n Admin. L. Judges 507, 511 (2005); Richard L. Huff & Craig E. Merutka, Freedom of Information Act Access to Personal Information Contained in Government Records: Public Property or Protected Information?, Army L., Jan. 2010, at 2, 5 (noting that the threshold can be met by more than just criminal investigations). ↑
  56. FBI v. Abramson, 456 U.S. 615, 631–32 (1982). ↑
  57. Huff & Merutka, supra note 54, at 5. ↑
  58. See DOJ Guide to Exemption 6, supra note 48, at 2. ↑
  59. 425 U.S. 352, 372 (1976). ↑
  60. See, e.g., Multi Ag Media LLC v. U.S. Dep’t of Agric., 515 F.3d 1224, 1229–30 (D.C. Cir. 2008) (establishing that any privacy interest greater than de minimis triggers the balancing test); Fed. Lab. Rels. Auth. v. U.S. Dep’t of Veterans Affs., 958 F.2d 503, 510 (2d Cir. 1992) (“Hence, once a more than de minimis privacy interest is implicated the competing interests at stake must be balanced in order to decide whether disclosure is permitted under FOIA.”); see also DOJ Guide to Exemption 6, supra note 48, at 71–72; DOJ Guide to Exemption 7(C), supra note 42, at 27. ↑
  61. U.S. Dep’t of Def. v. Fed. Lab. Rels. Auth., 510 U.S. 487, 505 (1994) (Ginsburg, J., concurring in the judgement). ↑
  62. 489 U.S. 749, 763, 769 (1989). ↑
  63. Id. at 763. ↑
  64. Id. at 775; see also id. at 774 (“FOIA’s central purpose is to ensure that the Government’s activities be opened to the sharp eye of public scrutiny, not that information about private citizens that happens to be in the warehouse of the Government be so disclosed.”). The Supreme Court’s core purpose doctrine is also often called the central purpose test. The two phrases are interchangeable. ↑
  65. See Hoefges et al., supra note 14, at 56–57. ↑
  66. For a few critiques, see Hoefges et al., supra note 14, at 25–26; Beall, supra note 14, at 1258; Halstuk, supra note 14, at 463–68. Reporters Committee was at least partially a response to the flood of FOIA requests by private individuals seeking information only for their own benefit. The core purpose doctrine prevents these kinds of requests. See infra note 170 and accompanying text. ↑
  67. U.S. Dep’t of Def. v. Fed. Lab. Rels. Auth., 510 U.S. 487, 507–08 (Ginsburg, J., concurring in the judgement). ↑
  68. Id. at 502 (withholding disclosure of home addresses); N.Y. Times Co. v. Nat’l Aeronautics & Space Admin., 782 F. Supp. 628, 633 (D.D.C. 1991) (withholding disclosure of recordings of the astronauts aboard the Challenger); World Pub’g Co. v. U.S. Dep’t of Just., 672 F.3d 825, 831–32 (10th Cir. 2012) (withholding “mug shots” of arrestees). Courts also routinely protect more mundane information such as social security numbers, telephone numbers, and medical information. See DOJ Guide to Exemption 6, supra note 48, at 73–75 for a more thorough list. ↑
  69. 502 U.S. 164 (1991). ↑
  70. Id. at 178–79. ↑
  71. Id. at 166. ↑
  72. Id. at 167–69. ↑
  73. Ray v. U.S. Dep’t of Just., 908 F.2d 1549, 1554–55 (11th Cir. 1990). ↑
  74. Id. at 1554. ↑
  75. Id. at 1555–56. ↑
  76. Ray, 502 U.S. at 176–77. ↑
  77. Id. ↑
  78. Id. ↑
  79. See id. at 180–81 (Scalia, J., concurring in part and concurring in the judgement). ↑
  80. Id. at 178–79. ↑
  81. Id. at 178. ↑
  82. Id. at 178–79. ↑
  83. Id. at 178. ↑
  84. Id. at 179. ↑
  85. Id. ↑
  86. Id. ↑
  87. Id. See the discussion of Favish, infra at Section III.C, for the Court’s most recent guidance on what evidence can overcome the presumption of legitimacy. ↑
  88. Id. at 180 (Scalia, J., concurring in part and in judgement) (“The majority does not, in my view, refute the persuasive contention that consideration of derivative uses, whether to establish a public interest or to establish an invasion of privacy, is impermissible.”). ↑
  89. Id. ↑
  90. Id. at 180–81. ↑
  91. Id. ↑
  92. Id.; see also Eric J. Sinrod, Blocking Access to Government Information Under the New Personal Privacy Rule, 24 Seton Hall L. Rev. 214, 226 (1993) (noting the Court’s double standard on the derivative use issue). ↑
  93. Ray, 502 U.S. at 182. ↑
  94. The one exception to this expansion of privacy rights came in the Court’s most recent privacy exemption case, FCC v. AT&T Inc., 562 U.S. 397 (2011). In this decision, the Court held that “personal privacy” as protected by Exemption 7(C) does not extend to corporations. Because the Court found that the exemption did not apply, that case does not impact the derivative use issue. ↑
  95. 510 U.S. 487 (1994). ↑
  96. Id. at 487, 497. ↑
  97. Id. at 490 (quoting 5 U.S.C. § 7114(b)(4)). ↑
  98. Id. at 490–91. ↑
  99. Id. at 491–92. ↑
  100. Id. at 495. ↑
  101. Id. at 497. ↑
  102. Id. ↑
  103. Id. at 502. ↑
  104. See Karl J. Sanders, Note, FOIA v. Federal Sector Labor Law: Which “Public Interest” Prevails? 62 U. Cin. L. Rev. 787, 813–15 (1993) (arguing that the facts of FLRA presented a strong opportunity for considering derivative benefits). ↑
  105. Fed. Lab. Rels. Auth., 510 U.S. at 500 (quoting U.S. Dep’t of Just. v. Reps. Comm., 489 U.S. 749, 763 (1989)). ↑
  106. Id. at 501. ↑
  107. Id. In contrast, the Fifth Circuit had found it hard to see how receiving mail could ever be an unwarranted invasion of privacy. Anyone uninterested in the mail could simply “send it to the circular file.” Fed. Lab. Rels. Auth. v. U.S. Dep’t of Def., 975 F.2d 1105, 1110 (5th Cir. 1992). ↑
  108. Justice Ginsburg, although concurring in the judgement, wrote separately to express her unease about the direction of the Court’s FOIA jurisprudence. Fed. Lab. Rels. Auth., 510 U.S. at 504–09 (Ginsburg, J., concurring in the judgement). She observed that Reporters Committee had “changed the FOIA calculus” by implementing a core purpose doctrine that had no origin in the statutory language. Id. at 505–07. Nevertheless, she concurred because she felt that Reporters Committee was controlling precedent and that the other members of the Court were committed to preserving it. Id. at 509. ↑
  109. Bibles v. Or. Nat’l Desert Ass’n, 519 U.S. 355, 355–56 (1997) (per curiam). ↑
  110. Or. Nat’l Desert Ass’n v. Bibles, 83 F.3d 1168, 1169–71 (9th Cir. 1996), rev’d, 519 U.S. 355 (1997). ↑
  111. Id. at 1171. ↑
  112. Bibles, 519 U.S. at 355–56. ↑
  113. Id. ↑
  114. Nat’l Archives & Recs. Admin. v. Favish, 541 U.S. 157, 158 (2004). ↑
  115. Id. at 172. While Favish altered the Court’s doctrine in important ways, it left the basic foundation of Reporters Committee intact despite an amicus brief arguing that a recent amendment to FOIA effectively overruled the core purpose doctrine. Brief for Reporters Committee for Freedom of the Press as Amicus Curiae at 24, Nat’l Archives & Recs. Admin. v. Favish, 541 U.S. 157 (2004) (No. 02-954). When Congress amended FOIA to clarify that it also extended to records in an electronic format, it added that the purpose of the statute was to provide a right to access non-exempt records “for any public or private purpose.” Pub. L. No. 104-231, § 2(a)(1), 110 Stat. 3048 (1996) (emphasis added). Senator Patrick Leahy, who introduced the amendment, wrote in a Senate report that this language was specifically intended to counter the Court’s erroneous core purpose doctrine, but the Court brushed past this without comment in Favish. See S. Rep. No. 104-272, at 26–27 (1996); Halstuk & Davis, Public Interest Be Damned, supra note 24, at 1015–16. ↑
  116. Favish, 541 U.S. at 174–75. ↑
  117. See U.S. Dep’t of Just. Off. of Info. & Priv., Supreme Court Decides to Hear “Survivor Privacy” Case (2003), https://www.justice.gov/archive/oip/foiapost/2003foiapost17.htm [https://perma.cc/48K3-SHTX]. ↑
  118. Favish, 541 U.S. at 161–64. ↑
  119. Id. at 165. ↑
  120. Id. at 165–69. ↑
  121. Id. at 166. ↑
  122. Id. at 166–67. ↑
  123. Id. at 173–75. ↑
  124. Id. at 174. The Department of Justice has found that most plaintiffs fail to meet this heightened evidentiary standard. DOJ Guide to Exemption 6, supra note 48, at 67. However, for one example in which this standard was found to have been met, see Union Leader Corp. v. United States Department of Homeland Security, 749 F.3d 45 (1st Cir. 2014), discussed infra at Section V.D. ↑
  125. Favish, 541 U.S. at 174, 175. The Court’s requirement places requestors in a Catch-22. To be allowed to investigate government misconduct, they must first be able to offer significant evidence of government misconduct. This requirement, while tracking with common sense by refusing to let bare allegations trump concrete privacy interests, has no roots in FOIA’s text. See Halstuk, Secrecy Trumps Transparency, supra note 14, at 468. ↑
  126. Favish, 541 U.S. at 175. ↑
  127. Id. at 172. ↑
  128. Id. ↑
  129. Id. While the Court contextualized its requirement as applying to Exemption 7(C), it is probable that it would interpret Exemption 6 in the same way because of their similarity, which the Court has repeatedly recognized. See Fed. Lab. Rels. Auth., 510 U.S. at 496 n.6 (explaining that the difference between the two exemptions is purely in the magnitude, not kind, of privacy protection provided). ↑
  130. Bemis, supra note 54, at 539–40. ↑
  131. See Fed. Lab. Rels. Auth., 510 U.S. at 507 (Ginsburg, J., concurring in the judgement) (“A FOIA requester need not show in the first instance that disclosure would serve any public purpose.” (emphasis added)). ↑
  132. 5 U.S.C. § 552(a)(4)(B). ↑
  133. U.S. Dep’t of Just., Freedom of Information Act Guide & Privacy Act Overview 432–33, 432 n.47 (Pamela Maida ed., May 2004 ed.) (citing Nat’l Ass’n of Retired Fed. Emps. v. Horner, 879 F.2d 873, 878 (D.C. Cir. 1989)). ↑
  134. See the discussion of Ray supra Part II for a full analysis of the Scalia-Kennedy concurrence. ↑
  135. See supra notes 122–25 and accompanying text. ↑
  136. U.S. Dep’t of State v. Ray, 502 U.S. 164, 178–79 (1991). ↑
  137. Nat’l Archives & Recs. Admin. v. Favish, 541 U.S. 157, 172–75 (2004). ↑
  138. Id. ↑
  139. Id. at 172–73 (“We do not in this single decision attempt to define the reasons that will suffice, or the necessary nexus between the requested information and the asserted public interest that would be advanced by disclosure.”). ↑
  140. See Hoefges et al., supra note 14, at 39. While this was noted pre-Favish, it is still true after that case. ↑
  141. Brinkerhoff, supra note 20, at 577. ↑
  142. See Wash. Post Co. v. U.S. Dep’t of Health & Hum. Servs., 690 F.2d 252, 261 (D.C. Cir. 1982). ↑
  143. See Lillian R. BeVier, Information About Individuals in the Hands of Government: Some Reflections on Mechanisms for Privacy Protection, 4 Wm. & Mary Bill Rts. J. 455, 485 (1995) (arguing that the Supreme Court had turned the privacy exemptions into shields for nondisclosure). ↑
  144. Cf. Nat’l Ass’n of Retired Fed. Emps. v. Horner, 879 F.2d 873, 878 (D.C. Cir. 1989) (“Where there is a substantial probability that disclosure will cause an interference with personal privacy, it matters not that there may be two or three links in the causal chain.”). ↑
  145. See U.S. Dep’t of State v. Ray, 502 U.S. 164, 181 (1991) (Scalia, J., concurring). ↑
  146. See supra Part III and Section IV.C for a discussion of the Court’s implicit acceptance of derivative benefits in certain circumstances. ↑
  147. Bibles v. Or. Nat’l Desert Ass’n, 519 U.S. 355, 355–56 (1997) (per curiam). ↑
  148. See Nat’l Archives & Recs. Admin. v. Favish, 541 U.S. 157, 172–74 (2004). ↑
  149. See, e.g., Hopkins v. U.S. Dep’t of Hous. & Urb. Dev., 929 F.2d 81, 88 (2d Cir. 1991) (dismissing a derivative benefits argument because “[w]ere we to compel disclosure of personal information with so attenuated a relationship to governmental activity, however, we would open the door to disclosure of virtually all personal information, thereby eviscerating the FOIA privacy exemptions”). ↑
  150. See Favish, 541 U.S. at 174. ↑
  151. Id. at 170–72. ↑
  152. See U.S. Dep’t of Def. v. Fed. Lab. Rels. Auth., 510 U.S. 487, 508–09 (1994) (Ginsburg, J., concurring in the judgement). ↑
  153. See Navigator Publ’g v. U.S. Dep’t of Transp., 146 F. Supp. 2d 68, 70–71 (D. Me. 2001) (rejecting an argument based on derivative benefits in part because the court doubted the requestor’s sincerity, believing that the requestor would use the requested information for personal profit rather than to vindicate the public interest). ↑
  154. See, e.g., Hoefges et al., supra note 14, at 60–63 (advocating for an expansive conception of public interest). ↑
  155. See John Doe Agency v. John Doe Corp., 493 U.S. 146, 161 (1989) (Scalia, J., dissenting) (remarking that courts treat the need to narrowly construe FOIA’s exemptions as “a formula to be recited rather than a principle to be followed”); Fed. Lab. Rels. Auth., 510 U.S. at 507 (Ginsburg, J., concurring in the judgement) (“The Reporters Committee ‘core purpose’ limitation is not found in FOIA’s language.”). ↑
  156. Whether this shield should have been created by Congress rather than the Supreme Court is irrelevant to the overall point that the core purpose doctrine has certain benefits as a matter of policy. Early commentators on FOIA often viewed it as a sort of Pandora’s box which had released all number of unforeseen consequences and threatened to inundate government agencies with requests. Reporters Committee was an attempt to put the lid back on the box. See Beall, supra note 14, at 1253–56. ↑
  157. See Hoefges et al., supra note 14, at 10 n.49. ↑
  158. See Nat’l Archives & Recs. Admin. v. Favish, 541 U.S. 157, 170 (2004). ↑
  159. See Manna v. U.S. Dep’t of Just., 51 F.3d 1158, 1165 (3d Cir. 1995). ↑
  160. Other scholars have suggested rebalancing the disclosure scales through an opposite approach: narrowing the relevant privacy interests rather than expanding the conception of the public interest. See Hoefges et al., supra note 14, at 63. Under this approach, the privacy exemptions cannot be triggered merely by the existence of personally identifiable information in the requested documents. Instead, the government can only invoke the privacy exemptions if the requested documents contain personal information that is intimate in nature or inherently private. Id. at 63 & n.435. While such a proposal is outside the scope of this article, there are reasons to believe that the Supreme Court has expanded the protected zone of privacy beyond the statute’s text and purpose. However, this proposal runs into the same difficulty as the calls to overturn the core purpose doctrine—it would require dismantling Reporters Committee, which is highly unlikely. See U.S. Dep’t of Just. v. Reps. Comm. for Freedom of the Press, 489 U.S. 749, 763 (1989) (indicating that FOIA’s privacy exemptions protect more than what is inherently private). ↑
  161. A number of district courts across the country have also allowed disclosure based on derivative benefits. For a substantial but far from comprehensive list, see DOJ Guide to Exemption 6, supra note 48, at 57–59. ↑
  162. In contrast to the limited caselaw on derivative benefits, consideration of derivative privacy harms is ubiquitous among the circuits, even if courts seldom acknowledge it as such. See, e.g., Prudential Locations LLC v. U.S. Dep’t of Hous. & Urb. Dev., 739 F.3d 424, 426, 431 (9th Cir. 2013) (finding that disclosing the names of those who had alleged a certain business had broken federal law would risk exposing them to retaliation, stigma, and harassment); Forest Guardians v. U.S. FEMA, 410 F.3d 1214, 1216, 1220 (10th Cir. 2005) (finding that privacy interests would be invaded by disclosure of electronic mapping files because lot numbers could be manipulated to reveal home addresses). Only the Fifth Circuit, citing the Ray concurrence approvingly, has expressed doubt over whether derivative harms should be accorded any weight. See Cooper Cameron Corp. v. U.S. Dep’t of Lab., 280 F.3d 539, 554 n.68 (5th Cir. 2002) (noting that the court’s ruling accorded with the Ray concurrence); Sherman v. U.S. Dep’t of the Army, 244 F.3d 357, 365 n.14 (5th Cir. 2001) (citing the Ray concurrence and expressly disclaiming that Court’s holding involved weighing derivative harms). However, the Fifth Circuit has not addressed the issue since the Supreme Court’s decision in Favish, and one of its district courts has more recently found that weighing derivative harms is permitted. See Inclusive Cmtys. Project, Inc. v. U.S. Dep’t of Hous. & Urb. Dev., No. 3:14-cv-3333, 2016 U.S. Dist. LEXIS 123779, at *21–22 (N.D. Tex. Sept. 13, 2016) (choosing to consider derivative privacy harms because the Supreme Court and the D.C. Circuit do so). Because derivative harms are not a serious point of contention among the circuits, the following discussion is limited to derivative benefits. ↑
  163. See, e.g., Beall, supra note 14, at 1259–60 (arguing that FLRA was the death knell for derivative benefits). ↑
  164. ACLU v. U.S. Dep’t of Just., 655 F.3d 1, 15 (D.C. Cir. 2011). ↑
  165. See Cooper Cameron Corp., 280 F.3d at 543. ↑
  166. ACLU, 655 F.3d at 3. ↑
  167. Id. at 3–4. ↑
  168. Id. at 4–5. ↑
  169. Id. at 5. ↑
  170. Id. at 6–12. ↑
  171. Id. at 11–12. But cf. Union Leader Corp. v. U.S. Dep’t of Homeland Sec., 749 F.3d 45, 53 (1st Cir. 2014) (finding that because the requestor did not intend to directly contact the subjects of the requested documents, the privacy interests at stake were diminished). ↑
  172. ACLU, 655 F.3d at 15. ↑
  173. Id. at 13–14. ↑
  174. Id. at 15. ↑
  175. Id. at 15–16. ↑
  176. See Multi AG Media LLC v. U.S. Dep’t of Agric., 515 F.3d 1224, 1226 (D.C. Cir. 2008) (allowing disclosure on a derivative benefits theory); Painting & Drywall Work Pres. Fund v. U.S. Dep’t of Hous. & Urb. Dev., 936 F.2d 1300 (D.C. Cir. 1991) (denying disclosure but finding that the ability of a journalist to use the requested information to further investigate governmental action weighed in favor of the public interest). ↑
  177. Multi AG Media LLC, 515 F.3d at 1224. ↑
  178. Id. at 1231–32. ↑
  179. Id. at 1231. But see McCutchen v. Dep’t of Health & Hum. Serv., 30 F.3d 183, 188 (D.C. Cir. 1994) (observing that the mere desire to oversee how the government is performing its duties does not create a public interest that can outweigh privacy concerns). ↑
  180. See Lepelletier v. FDIC, 164 F.3d 37, 48 (D.C. Cir. 1999); see also Halstuk & Davis, The Public Interest Be Damned, supra note 24, at 1011–13. ↑
  181. Lepelletier, 164 F.3d at 39. ↑
  182. Id. at 47. ↑
  183. Id. at 48. ↑
  184. Id. ↑
  185. Id. The D.C. Circuit also forbade the district court from releasing the depositors’ names in conjunction with the amount owed to them by the government, another sign that it believed the depositors did possess a privacy interest. Id. ↑
  186. See Long v. Off. of Pers. Mgmt., 692 F.3d 185, 198 (2d Cir. 2012); Associated Press v. U.S. Dep’t of Def., 554 F.3d 274, 293 (2d Cir. 2009); Hopkins v. U.S. Dep’t of Hous. & Dev., 929 F.2d 81, 88–89 (2d Cir. 1991). ↑
  187. Hopkins, 929 F.2d at 82. ↑
  188. Id. at 88. ↑
  189. Id. ↑
  190. Associated Press, 554 F.3d at 290 (“Although this Court has not addressed the issue of whether a derivative use theory is cognizable under FOIA as a valid way by which to assert that a public interest is furthered, we have indicated that it may not be.”). ↑
  191. Id. at 279–80. ↑
  192. Id. at 290. See also Long v. Off. of Pers. Mgmt., 692 F.3d 185, 194 (2d Cir. 2012) (“The use of personnel files to contact government employees in the hopes of uncovering malfeasance does not serve FOIA’s objectives.”). But see Kuzma v. U.S. Dep’t of Just., 692 F. App’x 30, 35 (2d Cir. 2017) (rejecting a derivative use argument that would merely “provide further avenues for research” into alleged government misconduct). While the Second Circuit’s comments here seem broad enough to go beyond skepticism just related to direct contact, the plaintiff’s derivative benefits argument was so threadbare and the court’s analysis so perfunctory that it is unlikely that this case hints at anything larger. See id. ↑
  193. See Forest Servs. Emps. v. U.S. Forest Serv., 524 F.3d 1021, 1028 (9th Cir. 2008) (rejecting a direct contact argument); Lahr v. Nat’l Transp. Safety Bd., 569 F.3d 964, 979 (9th Cir. 2009) (same). ↑
  194. See Elec. Frontier Found. v. Off. of the Dir. of Nat’l Intel., 639 F.3d 876, 888–89 (9th Cir. 2010); Rosenfield v. U.S. Dep’t of Just., 57 F.3d 803, 815 (9th Cir. 1995). ↑
  195. See Forest Servs., 524 F.3d at 1027–28. ↑
  196. Id at 1028. ↑
  197. Id. See also Lahr, 569 F.3d at 975 (finding Forest Services to be binding precedent and similarly denying disclosure where the public interest could only be advanced at the expense of privacy via direct contact); Painting Indus. of Haw. Mkt. Recovery Fund v. U.S. Dep’t of the Air Force, 26 F.3d 1479, 1485 (9th Cir. 1994) (rejecting a derivative benefits argument predicated on direct contact because the public interest and the privacy interest were “intertwined”). ↑
  198. See Elec. Frontier Found., 639 F.3d at 887–88; see also Rosenfield, 57 F.3d 803, 815 (allowing disclosure of names so that the public could ascertain whether the FBI improperly targeted the leadership of a political movement). ↑
  199. Elec. Frontier Found., 639 F.3d at 880–81. ↑
  200. Id. at 888. ↑
  201. Id. at 887–88. ↑
  202. Union Leader Corp. v. U.S. Dep’t of Homeland Sec., 749 F.3d 45, 48 (1st Cir. 2014). ↑
  203. For analysis of the evidentiary standards laid out by the Supreme Court in Favish, see the discussion supra Section III.C. ↑
  204. Union Leader, 749 F.3d at 54. ↑
  205. Id. at 55–56. ↑
  206. Id. at 56. ↑
  207. News-Press v. U.S. Dep’t of Homeland Sec., 489 F.3d 1173, 1174 (11th Cir. 2007). The Eleventh Circuit also allowed disclosure based on derivative benefits in Ray before the Supreme Court reversed. Because of that reasoning, at least one district court in the aftermath of Ray found that considering derivative benefits was still permissible until the Eleventh Circuit ruled otherwise, since the Supreme Court had declined to answer that question. See Ray v. U.S. Dep’t of Just., INS, 852 F. Supp. 1558, 1564–65 (S.D. Fla. 1994). ↑
  208. News-Press, 489 F.3d at 1177–78. ↑
  209. Id. at 1178–81. ↑
  210. Id. at 1192–93. The court reached its decision even while knowing that the newspapers would likely need to contact some recipients directly in the course of their investigation. See id. at 1203. This stands in contrast to the decisions of the Ninth Circuit, which generally do not allow disclosure where the derivative benefits entail direct contact with the identifiable subjects of the requested documents. ↑
  211. Id. at 1205. ↑
  212. News-Press v. U.S. Dep’t of Homeland Sec., 2005 U.S. Dist. LEXIS 27492, at *54 (M.D. Fla. Nov. 4, 2005). ↑

Foreign-Influence Laws: The Constitutionality of Restrictions on Independent Expenditures by Corporations with Foreign Shareholders

A decade on, legislatures are still coming to terms with the reach of Citizens United. In a novel push to cabin the effects of the opinion, legislatures have passed or are seeking to pass regulations that raise the specter of foreign intervention in American politics—a menace with which contemporary American political life has become well acquainted. Yet in doing so these legislatures overreach, and they will likely fail to escape the modern Charybdis that is Citizens United.

This Note provides the campaign finance literature’s first detailed taxonomy and discussion of what it calls “foreign-influence laws.” These regulations bar corporations from making independent expenditures when foreigners own a certain percentage of a firm’s shares, a result that appears to directly contradict the Supreme Court’s guidance in Citizens United. Three jurisdictions recently passed foreign-influence laws, and an increasing number of state legislators are proposing them. The statutes emphasize the incompatibility of Citizens United, which protects corporate political speech, and Bluman, which authorizes restrictions on foreigners’ political participation. Nevertheless, neither Citizens United nor Bluman supports the constitutionality of these laws. This Note also provides the first rigorous constitutional analysis of foreign-influence laws, arguing that the regulations should receive strict scrutiny and that the government has a compelling interest to limit the political speech of foreign entities. However, the laws are not narrowly tailored to that interest, given shareholders’ limited power to influence corporate political decisions. As a result, this Note concludes that foreign-influence laws are not constitutional. The Note then provides recommendations to legislatures and courts considering foreign-influence laws, as well as potential alternatives that courts will likely find constitutional.

Introduction

In January 2020, the Seattle City Council enacted a new ordinance designed to limit the political spending of what it called “foreign-influenced corporations.”1 1.See Seattle, Wash., Ordinance 126,035 (Jan. 17, 2020).Show More The law bans any corporation from spending in connection with local elections when a single foreign national owns a 1% stake in the firm, or when foreign nationals in aggregate own 5% or more of the firm.2 2.See Seattle, Wash., Mun. Code tit. 2, ch. 4, §§ 10, 400 (2020).Show More The city council member who sponsored the ordinance explained, “this legislation closes a loophole that previously allowed foreign persons to use their ownership in a corporation to influence political activity.”3 3.Press Release, Seattle City Council, Council President González’s Clean Campaigns Act Passes (Jan. 13, 2020), https://council.seattle.gov/2020/01/13/council-president-gonzalezs-clean-campaigns-act-passes/ [https://perma.cc/6YTT-MZ2Z].Show More In passing the measure, the city council vice chair expressed concern over the effects of foreign money on the American democratic process, noting not only foreign nationals’ growing ownership shares in U.S. corporations but also that “foreign interests can easily diverge from U.S. interests . . . nationally, and . . . locally in municipal government.”4 4.City Council 1/13/2020, Seattle Channel, at 35:37–36:03 (Jan. 13, 2020), http://www.seattlechannel.org/FullCouncil/?videoid=x110205&Mode2=Video [https://perma.cc/BQ8C-MHFK].Show More Seattle’s prohibition on foreign-influenced corporate spending covers not only contributions directly to campaigns, but also contributions to political committees and independent expenditures5 5.Independent expenditures are communications advocating the election or defeat of a candidate and are not coordinated with campaigns. See 11 C.F.R. § 100.16 (2020).Show More when foreigners hold stakes in the donating corporation.6 6.See Seattle, Wash., Mun. Code tit. 2, ch. 4, §§ 10, 400 (2020).Show More For corporations with significant foreign shareholders, these rules re-impose the prohibition on corporate independent expenditures that the Supreme Court ruled unconstitutional in Citizens United v. Federal Election Commission.7 7.558 U.S. 310, 365–66 (2010).Show More

Yet Seattle is not alone in enacting this type of statute. Local and state legislators across the United States have either passed or are considering similar legislation, with support and urging from campaign finance reformers and legal scholars.8 8.Supporters include Free Speech for People, FEC Commissioner Ellen Weintraub, and law professors Laurence Tribe and John Coates, among others. Challenging Foreign Influence in Elections, Free Speech for People, https://freespeechforpeople.org/foreign-influence/ [https://perma.cc/P4XN-DA94] (last visited Apr. 10, 2021); Free Speech for People Applauds Provision in Anti-Corruption and Public Integrity Act Banning Political Spending by Foreign-Influenced Corporations, Free Speech for People (Dec. 22, 2020), https://freespeechforpeople.org/free-speech-for-people-applauds-provision-in-anti-corruption-and-public-integrity-act-banning-political-spending-by-foreign-influenced-corporations/ [https://perma.cc/59CN-AVQY]; Ellen L. Weintraub, Taking on Citizens United, N.Y. Times (Mar. 30, 2016), https://www.nytimes.com/2016/03/30/opinion/taking-n-citizens-united.html [https://perma.cc/V5TX-Q3V4]; Letter from Laurence H. Tribe, Professor, Harv. L. Sch., to the Seattle City Council (Jan. 3, 2020), https://freespeech‌forpeople.org/wp-content/uploads/2020/01/tribe-testimony-1-3-2020-proposed-ordinance-to-limit-political-spending-by-foreign_influenced-corporations.pdf [https://perma.cc/QD7J-SZ8T] [hereinafter Letter from Tribe]; Letter from John Coates, Professor, Harv. L. Sch., to Barry Finegold, Chairman, Mass. State House, and John L. Lawn, Jr., Chairman, Mass. State House (May 14, 2019), https://freespeechforpeople.org/wp-content/uploads/2019/05/2019-Coates-MA-FIC-20190514-PDF-final.pdf [https://perma.cc/MC3Y-YXWK] [hereinafter Letter from John Coates]; infra notes 29–40 and accompanying text.Show More Despite the fact that these laws prohibit nearly all major U.S. corporations from engaging in independent expenditures,9 9.See Michael Sozan, Ctr. for Am. Progress, Ending Foreign-Influenced Corporate Spending in U.S. Elections 42 (2019).Show More advocates argue that the regulations are not only constitutional,10 10.Letter from Tribe, supra note 8; City Council 1/13/2020, Seattle Channel, at 27:17–28:09 (Jan. 13, 2020), http://www.seattlechannel.org/FullCouncil/?videoid=x110205&Mode2=‌Video [https://perma.cc/YJ4Z-CYBX].Show More but also critical for protecting American elections from foreign interference.11 11.See, e.g., Challenging Foreign Influence in Elections, Free Speech for People, https://freespeechforpeople.org/foreign-influence/ [https://perma.cc/G5WP-29XH] (last visited Apr. 10, 2021).Show More For support, advocates look to Bluman v. Federal Election Commission, a 2011 case in which the U.S. District Court for the District of Columbia upheld the federal statute barring foreign nationals from providing anything of value in connection with elections on the federal, state, and local level.12 12.See 18 U.S.C. § 30121 (2018); Bluman v. Fed. Election Comm’n, 800 F. Supp. 2d 281, 283 (D.D.C. 2011). Then-Circuit Judge Kavanaugh wrote the court’s opinion. See Letter from Tribe, supra note 8.Show More

This Note argues, however, that the doctrinal issues stalking laws limiting the political activity of U.S.-based, “foreign-influenced” corporations cannot be so easily dismissed, and Bluman does not actually support curtailing U.S. corporate speech. A deeper analysis of the statutes and case law exposes significant problems that supporters have yet to confront. Furthermore, these laws emphasize a clash between the expansion of corporate speech rights in Citizens United and the continued constraints on foreign speakers’ rights upheld in Bluman. This incompatibility is rendered particularly stark by the growing percentage of foreign-owned U.S. corporate stock, as well as the conclusion that publicly-traded American corporations can rarely be considered entirely American.13 13.According to Federal Reserve data, foreign ownership of U.S. corporate stock grew from about 5% in 1982 to 26% in 2015. See Steven M. Rosenthal & Lydia S. Austin, The Dwindling Taxable Share of U.S. Corporate Stock, 151 Tax Notes 923, 928–29 (2016).Show More To resolve this mismatch between Citizens United and Bluman, the Supreme Court will likely need to provide further guidance, and this Note considers several problems foreign-influence laws present in the context of this discord.

This exploration includes the first detailed account of legislatures’ efforts to pass foreign-influence laws across the United States at the federal, state, and local levels. Part I discusses the history of these laws, as well as recent enactments and proposals. This represents the first taxonomy of what this Note calls “foreign-influence laws.” Part II discusses campaign finance laws and decisions related to both corporations and foreigners, before exploring the degree to which Bluman and Citizens United stand at odds—an aspect of the case law that has to date largely been considered in passing. Part III then argues that foreign-influence laws are likely unconstitutional because they are not narrowly tailored to the government’s interest in controlling foreigners’ political speech. This Part also considers the degree to which foreign-influence laws chill protected speech and discusses federalism concerns that weigh against deference to local legislatures. These problems lead to the conclusion that foreign-influence laws are likely unconstitutional under current Supreme Court guidance. Finally, Part IV provides recommendations to courts and legislatures considering foreign-influence laws, as well as potential alternative approaches to restricting foreign influence on elections that pose fewer constitutional difficulties.

  1. * University of Virginia Law School, J.D. expected 2022. The author would like to thank Jackson Myers for his feedback throughout the completion of this Note, as well as Professor Michael Gilbert for his supervision of the project. The author supports campaign finance reform efforts as a policy matter despite the legal conclusions of this Note. ↑

  2. See Seattle, Wash., Ordinance 126,035 (Jan. 17, 2020). ↑

  3. See Seattle, Wash., Mun. Code tit. 2, ch. 4, §§ 10, 400 (2020). ↑

  4. Press Release, Seattle City Council, Council President González’s Clean Campaigns Act Passes (Jan. 13, 2020), https://council.seattle.gov/2020/01/13/council-president-gonzalezs-clean-campaigns-act-passes/ [https://perma.cc/6YTT-MZ2Z]. ↑

  5.  City Council 1/13/2020, Seattle Channel, at 35:37–36:03 (Jan. 13, 2020), http://www.seattlechannel.org/FullCouncil/?videoid=x110205&Mode2=Video [https://perma.cc/BQ8C-MHFK]. ↑

  6. Independent expenditures are communications advocating the election or defeat of a candidate and are not coordinated with campaigns. See 11 C.F.R. § 100.16 (2020). ↑

  7. See Seattle, Wash., Mun. Code tit. 2, ch. 4, §§ 10, 400 (2020). ↑

  8. 558 U.S. 310, 365–66 (2010). ↑

  9. Supporters include Free Speech for People, FEC Commissioner Ellen Weintraub, and law professors Laurence Tribe and John Coates, among others. Challenging Foreign Influence in Elections, Free Speech for People, https://freespeechforpeople.org/foreign-influence/ [https://perma.cc/P4XN-DA94] (last visited Apr. 10, 2021); Free Speech for People Applauds Provision in Anti-Corruption and Public Integrity Act Banning Political Spending by Foreign-Influenced Corporations, Free Speech for People (Dec. 22, 2020), https://freespeechforpeople.org/free-speech-for-people-applauds-provision-in-anti-corruption-and-public-integrity-act-banning-political-spending-by-foreign-influenced-corporations/ [https://perma.cc/59CN-AVQY]; Ellen L. Weintraub, Taking on Citizens United, N.Y. Times (Mar. 30, 2016), https://www.nytimes.com/2016/03/30/opinion/taking-n-citizens-united.html [https://perma.cc/V5TX-Q3V4]; Letter from Laurence H. Tribe, Professor, Harv. L. Sch., to the Seattle City Council (Jan. 3, 2020), https://freespeech‌forpeople.org/wp-content/uploads/2020/01/tribe-testimony-1-3-2020-proposed-ordinance-to-limit-political-spending-by-foreign_influenced-corporations.pdf [https://perma.cc/QD7J-SZ8T] [hereinafter Letter from Tribe]; Letter from John Coates, Professor, Harv. L. Sch., to Barry Finegold, Chairman, Mass. State House, and John L. Lawn, Jr., Chairman, Mass. State House (May 14, 2019), https://freespeechforpeople.org/wp-content/uploads/2019/05/2019-Coates-MA-FIC-20190514-PDF-final.pdf [https://perma.cc/MC3Y-YXWK] [hereinafter Letter from John Coates]; infra notes 29–40 and accompanying text. ↑

  10. See Michael Sozan, Ctr. for Am. Progress, Ending Foreign-Influenced Corporate Spending in U.S. Elections 42 (2019). ↑

  11. Letter from Tribe, supra note 8; City Council 1/13/2020, Seattle Channel, at 27:17–28:09 (Jan. 13, 2020), http://www.seattlechannel.org/FullCouncil/?videoid=x110205&Mode2=‌Video [https://perma.cc/YJ4Z-CYBX]. ↑

  12. See, e.g., Challenging Foreign Influence in Elections, Free Speech for People, https://freespeechforpeople.org/foreign-influence/ [https://perma.cc/G5WP-29XH] (last visited Apr. 10, 2021). ↑

  13. See 18 U.S.C. § 30121 (2018); Bluman v. Fed. Election Comm’n, 800 F. Supp. 2d 281, 283 (D.D.C. 2011). Then-Circuit Judge Kavanaugh wrote the court’s opinion. See Letter from Tribe, supra note 8. ↑

  14. According to Federal Reserve data, foreign ownership of U.S. corporate stock grew from about 5% in 1982 to 26% in 2015. See Steven M. Rosenthal & Lydia S. Austin, The Dwindling Taxable Share of U.S. Corporate Stock, 151 Tax Notes 923, 928–29 (2016). ↑

  15. The statute was previously codified at 2 U.S.C. § 441e, but for clarity this Note refers to the statute by its contemporary codification throughout. See 2 U.S.C. § 441e (“Section 441e was editorially reclassified as section 30121 of Title 52, Voting and Elections.”). ↑

  16. H.R. 4517, 111th Cong. § 2 (2010). ↑

  17. Actions Overview, H.R. 4517, Congress.gov, https://www.congress.gov/bill/111th-congress/house-bill/4517/all-actions-without-amendments [https://perma.cc/77Z7-FAZG] (last visited Apr. 10, 2021). ↑

  18. See H.R. 5175, 111th Cong. §§ 1(a), 102(a) (2010); S. 3295, 111th Cong. § 2 (2010) § 102(a)(3). ↑

  19. See H.R. 5175, 111th Cong. § 102(a) (2010). ↑

  20. See id. ↑

  21. Actions Overview, H.R. 5175, Congress.gov, https://www.congress.gov/bill/111th-congress/house-bill/5175/actions [https://perma.cc/NB86-NBBT] (last visited Apr. 12, 2021). ↑

  22. See David M. Herszenhorn, Campaign Finance Bill Is Set Aside, N.Y. Times (July 27, 2010), www.nytimes.com/2010/07/28/us/politics/28donate.html [https://perma.cc/V6KJ-D6KX].

    The Senate version of the DISCLOSE Act never left committee. See Actions Overview, S. 3295, Congress.gov, https://www.congress.gov/bill/111th-congress/senate-bill/3295/all-actions-without-amendments [https://perma.cc/SUC4-FNXK] (last visited Mar. 17, 2021). ↑

  23. For example, the DISCLOSE Act of 2018 contained the same language as the 2010 House version, with a 20% threshold for foreign nationals and a 5% threshold for foreign governments and officials. S. 3150, 115th Cong. § 101(a)(3) (2018); see also S. 1585, 115th Cong. § 101(a)(3) (2017) (proposing the same). ↑

  24. Although many federal proposals have considered the percentage of foreign-owned stock, legislators advanced several alternative methods to restrict foreign influence on corporate political activity. The version of the DISCLOSE Act that passed the House, for example, would have barred the independent expenditures of corporations run by majority-foreign boards. See H.R. 5175, 111th Cong. § 102(a)(3) (2010). Other bills called for bans on contributions and expenditures by political committees associated with firms majority-owned by foreign nationals. See H.R. 195, 113th Cong. § 2 (2013). Some sought to extend section 30121 to all firms controlled by foreign nationals, including United States subsidiaries of foreign corporations. See H.R 5175, 111th Cong. § 2 (2010). This legislation would overwrite FEC guidance allowing domestic subsidiaries of foreign corporations to operate political committees, provided that no foreign national controlled the committee. See, e.g., LLC Affiliated with Domestic Subsidiary of a Foreign Corporation May Administer an SSF, FEC A.O. 2009-14 (Oct. 2, 2009). ↑

  25. See, e.g., Program for Pub. Consultation, Univ. of Md. Sch. of Pub. Pol’y, Americans Evaluate Campaign Finance Reform 7 (2018), https://www.publicconsultation.org/wp-content/uploads/2018/05/Campaign_Finance_Report.pdf [https://perma.cc/3BZ9-77B2] (finding that 75% of respondents would support a proposed constitutional amendment overturning Citizens United); Hannah Hartig, 75% of Americans Say It’s Likely that Russia or Other Governments Will Try to Influence 2020 Election, Pew Rsch. Ctr. (Aug. 18, 2020), https://www.pewresearch.org/fact-tank/2020/08/18/75-of-americans-say-its-likely-that-russia-or-other-governments-will-try-to-influence-2020-election/ [https://perma.cc/7KCU-YGN7]. ↑

  26. See Getting Big Money out of Politics, Warren Democrats, https://elizabethwarren.com/‌plans/campaign-finance-reform [https://perma.cc/NQ22-QXRN] (last visited Apr. 12, 2021). ↑

  27. S. 5070, 116th Cong. § 205 (2020). ↑

  28. The Biden Plan to Guarantee Government Works for the People, Biden Harris Democrats, https://joebiden.com/governmentreform/ [https://perma.cc/5V2J-4WUU] (last visited Mar. 17, 2021). ↑

  29. See Joseph Biden & Michael Carpenter, Foreign Dark Money Is Threatening American Democracy, Politico (Nov. 27, 2018), https://www.politico.com/magazine/story/2018/11/27/‌foreign-dark-money-joe-biden-222690/ [https://perma.cc/Y2P8-PCHQ]. ↑

  30. See St. Petersburg, Fla., City Code pt. 2, ch. 10, art. iv, § 62 (2021). ↑

  31. St. Petersburg, Fla., City Code pt. 2, ch. 10, art. iii, § 51(m) (2021). ↑

  32. See N.Y.C., N.Y., Introduction No. 1074 (July 17, 2018). ↑

  33. See Seattle, Wash., Mun. Code tit. 2, ch. 4, §§ 10, 400 (2020). ↑

  34. See Alaska Stat. § 15.13.068 (2018). The Alaska law likely only applies to local election campaigns. See Alaska Stat. § 15.13.068(b) (2018); Recent Legislation, Election Law—Limits on Political Spending by Foreign Entities—Alaska Prohibits Spending on Local Elections by Foreign-Influenced Corporations—Alaska Stat. § 15.13.068 (2018), 132 Harv. L. Rev. 2402, 2405–06 (2019). ↑

  35. See Haw. Rev. Stat. § 11-356 (2010). ↑

  36. See Colo. Rev. Stat. §§ 1-45-103(10.5), 1-45-107.5(1) (2019). The Colorado statute next asserts compliance with Citizens United’s dictate that corporations and labor organizations not be prohibited from making independent expenditures, which represents either recognition of the state law’s incompatibility with the decision or an effort to stand up to it. ↑

  37. See S. 394, 190th Gen. Ct. (Mass. 2017); H. 2904, 190th Gen. Ct. (Mass. 2017). ↑

  38. See S. 401, 191st Gen. Ct. (Mass. 2019); S. 393, 191st Gen. Ct. (Mass. 2019); H. 703, 191st Gen. Ct. (Mass. 2019). ↑

  39. See Letter from Laurence H. Tribe, Professor, Harvard Law Sch., to Barry Finegold, Chairman, Mass. State House, and John L. Lawn, Jr., Chairman, Mass. State House (May 13, 2019), https://freespeechforpeople.org/wp-content/uploads/2019/05/2019-L.-Tribe-testimony-to-Mass-Election-Law-Committee.pdf [https://perma.cc/SR9T-SQQ3]; Letter from John Coates, supra note 8, at 1. ↑

  40. See H.B. 5410, 2020 Sess. (Conn.); H.B. 739, 2734–47, 133d Gen. Assemb. (Ohio 2020); S.B. 349, 2734–47, 133d Gen. Assemb. (Ohio 2020); S.B. 11, 2019 Sess. (Penn.); S.B. 497, 2018 Sess. (Conn.). ↑

  41. See H.B. 2738, 30th Leg. (Haw. 2020); H.B. 34, 441st Gen. Assemb. (Md. 2019); S.B. 87, 441st Gen. Assemb. (Md. 2019); H.F. 3405, 91st Leg. (Minn. 2020); S.B. 7578, 2020 Sess. (N.Y.). ↑

  42. See Citizens United v. Fed. Election Comm’n, 558 U.S. 310, 394 (2010) (Stevens, J., concurring in part and dissenting in part); Tillman Act, Pub. L. No. 59-36, ch. 420, 34 Stat. 864 (1907). ↑

  43. See McConnell v. Fed. Election Comm’n, 540 U.S. 93, 116 (2003) (citing the Federal Corrupt Practices Act of 1925, ch. 368, §§ 301, 302, 313, 43 Stat. 1070, 1074). ↑

  44. Labor Management Relations Act of 1947, Pub. L. No. 80-101, 61 Stat. 136, 159. In its regulation of elections, Congress made a few stops along the way unrelated to corporate political activity, such as the Hatch Act of 1939, Pub. L. No. 76-252, 53 Stat. 1147 (prohibiting civil service employees of the United States from interfering with elections and making it illegal to promise benefits in exchange for support of or opposition to a candidate or political party). ↑

  45. See Trevor Potter, Money, Politics, and the Crippling of the FEC, 69 Admin. L. Rev. 447, 451 (2017); Bradley A. Smith, Feckless: A Critique of Critiques of the Federal Election Commission, 27 Geo. Mason L. Rev. 503, 512 (2020). ↑

  46. See McConnell, 540 U.S. at 118. ↑

  47. Pub. L. No. 92-225, 86 Stat. 3 (1972); see also Robert E. Mutch, Buying the Vote: A History of Campaign Finance Reform, 130–38 (2014) (elaborating on the reasons for renewed campaign finance reform); Anthony J. Gaughan, The Forty-Year War on Money in Politics: Watergate, FECA, and the Future of Campaign Finance Reform, 77 Ohio St. L.J. 791, 795–96 (2016) (explaining the influence of the Watergate scandal on the public’s desire for campaign finance reform). ↑

  48. Pub. L. No. 92-225, 86 Stat. 3 at 4, 8–19 (1972). ↑

  49. Federal Election Campaign Act Amendments of 1974, Pub. L. No. 93-443, 88 Stat. 1263, 1280–81 (creating the FEC); id. at 1263 (introducing a $1,000 annual limit on a person’s contributions to a federal candidate); id. at 1265 (applying the same limit to a person’s independent expenditures). ↑

  50. See Federal Election Campaign Act Amendments of 1976 § 321(a), Pub. L. No. 94-283, 90 Stat. 475, 490. ↑

  51. 424 U.S. 1, 45–48 (1976) (deciding that the right to free speech outweighs the government’s interest in preventing corruption). Buckley’s facts involved independent expenditures by individuals, meaning that the Court took no explicit position on independent expenditures by corporations. See id. at 7–8. ↑

  52. Id. at 23–29. ↑

  53. Id. at 47. The Court later employed this same rationale to strike down corporate spending limits in ballot measure elections. First Nat’l Bank of Boston v. Bellotti, 435 U.S. 765, 788–95 (1978). ↑

  54. Buckley, 424 U.S. at 48–49, 57. ↑

  55. 494 U.S. 652, 655–56 (1990). ↑

  56. Id. at 660 (Michigan’s regulation targets “the corrosive and distorting effects of immense aggregations of wealth that are accumulated with the help of the corporate form and that have little or no correlation to the public’s support for the corporation’s political ideas”) ↑

  57. Buckley, 424 U.S. at 48–49 (describing the idea as “wholly foreign to the First Amendment”). ↑

  58. See Pub. L. No. 107-155, 116 Stat. 81 (2002) (introducing new restrictions aimed at limiting special interest influence and new rules for electioneering communications and independent and coordinated expenditures). ↑

  59. See id. §§ 101, 201, 211; McConnell v. Fed. Election Comm’n, 540 U.S. 93, 132 (2003); Richard Briffault, The Future of Reform: Campaign Finance After the Bipartisan Campaign Reform Act of 2002, 34 Ariz. St. L.J. 1179, 1180–81 (2002). ↑

  60. See 540 U.S. at 207–08 (citing Austin, 494 U.S. at 668, and remaining “[un]persuaded that plaintiffs . . . carried their heavy burden of proving that [the amended statute] is overbroad”); Richard Briffault, McConnell v. FEC and the Transformation of Campaign Finance Law, 3 Election L.J. 147, 147 (2004). ↑

  61. Electioneering communications include “any broadcast, cable, or satellite communication that refers to a clearly identified candidate for Federal office and is made within 30 days of a primary or 60 days of a general election.” Citizens United v. Fed. Election Comm’n, 558 U.S. 310, 321 (2010) (citing 2 U.S.C. § 434(f)(3)(A) (2006)) (internal quotations removed). ↑

  62. Toni M. Massaro, Foreign Nationals, Electoral Spending, and the First Amendment, 34 Harv. J.L. & Pub. Pol’y 663, 669 (2011). ↑

  63. Citizens United, 558 U.S. at 319–21. ↑

  64. See Fed. Election Comm’n v. Mass. Citizens for Life, Inc., 479 U.S. 238, 263–65 (1986) (finding that corporations that do not engage in business activities lack the attributes that give corporations the potential to distort or corrupt political discourse, and therefore may not be prohibited from engaging in independent expenditures). ↑

  65. See Citizens United, 558 U.S. at 324–25. ↑

  66. Id. at 327. ↑

  67. See Robert C. Post, Citizens Divided: Campaign Finance Reform and the Constitution 44 (2014). ↑

  68. Citizens United, 558 U.S. at 356. ↑

  69. Id. at 341, 355. ↑

  70. Id. at 339. ↑

  71. Id. at 340–41. ↑

  72. Id. at 348–50. ↑

  73. Id. at 365. ↑

  74. Pub. L. No. 89-486, § 613, 80 Stat. 244, 248–49; United States v. Singh, 924 F.3d 1030, 1042 (9th Cir. 2019). Although Congress enacted FARA in 1938, the law’s original formulation primarily targeted foreign propaganda as opposed to activity directed at election campaigns. H.R. Rep. No. 75-1381, at 1–3 (1937) (describing the purpose of the act as uncovering propaganda that may “influenc[e] American public opinion”); Pub. L. No. 75-583, 52 Stat. 631, 632 (covering public relations activities but not political activities). ↑

  75. Federal Election Campaign Act Amendments of 1974, Pub. L. No. 93-443, 88 Stat. 1263, 1267. ↑

  76. See Comm. on Governmental Affs., Investigation of Illegal or Improper Activities in Connection with 1996 Federal Election Campaigns, S. Rep. No. 105-167, at 33–34 (1998); Singh, 924 F.3d at 1042. ↑

  77. Pub. L. No. 107-155, § 441(e), 116 Stat. 81, 96 (2002) (current version at 52 U.S.C. § 30121(a) (2018)); Pub. L. No. 107-155, § 303(2)(a)(1), 116 Stat. 81, 96 (2002). ↑

  78. See Citizens United, 558 U.S. at 362 (“We need not reach the question whether the Government has a compelling interest in preventing foreign individuals or associations from influencing our Nation’s political process.”). ↑

  79. Id. at 423 (Stevens, J., concurring in part and dissenting in part). ↑

  80. Bluman v. Fed. Election Comm’n, 800 F. Supp. 2d 281, 285 (D.D.C. 2011). ↑

  81. Id. at 283, 292. ↑

  82. Id. at 289 (“[P]laintiffs . . . concede that the government may make distinctions based on the foreign identity of the speaker when the speaker is abroad. Plaintiffs contend, however, that the government may not impose the same restrictions on foreign citizens who are lawfully present in the United States on a temporary visa. We disagree.”). ↑

  83. Id. at 290; see also Alyssa Markenson, Note, What’s at Stake?: Bluman v. Federal Election Commission and the Incompatibility of the Stake-Based Immigration Plenary Power and Freedom of Speech, 109 Nw. U. L. Rev. 209, 229 (2015) (discussing Bluman’s stake-based rationale). ↑

  84. Bluman, 800 F. Supp. 2d at 288 (“It follows, therefore, that the United States has a compelling interest for purposes of First Amendment analysis in limiting the participation of foreign citizens in activities of American democratic self-government, and in thereby preventing foreign influence over the U.S. political process.”). ↑

  85. Id. at 288, 292. ↑

  86. Id. at 292 n.4. ↑

  87. Bluman v. Fed. Election Comm’n, 565 U.S. 1104 (2012). ↑

  88. Agency for Int’l Dev. v. All. for Open Soc’y Int’l, Inc., 140 S. Ct. 2082, 2086 (2020). ↑

  89. See John Paul Stevens, Six Amendments: How and Why We Should Change the Constitution 69–70 (2014); see also Laurence Tribe & Joshua Matz, Uncertain Justice: The Roberts Court and the Constitution 118 (2014) (noting that the Court “ducked the issue”). ↑

  90. Bluman, 800 F. Supp. 2d at 288. ↑

  91. Citizens United v. Fed. Election Comm’n, 558 U.S. 310, 356 (2010). ↑

  92. Id. at 340–41, 364; Tribe & Matz, supra note 88, at 118. ↑

  93. While Bluman correctly identified the existence of a “risk” involved with foreign participation in the American democratic process, the opinion declined to specify what that risk is. Bluman, 800 F. Supp. 2d at 291. ↑

  94. See Massaro, supra note 61, at 675. ↑

  95. Citizens United, 558 U.S. at 360 (emphasis added). ↑

  96. See Buckley v. Valeo, 424 U.S. 1, 55–56 (1976). ↑

  97. To be clear, this position disagrees with the stance of those who support foreign-influence laws. ↑

  98. See Bluman, 800 F. Supp. 2d at 292 n.4. ↑

  99. Id. at 288. ↑

  100. Id. at 290. ↑

  101. Id. at 291. ↑

  102. Id. at 290–91; Markenson, supra note 82, at 229. ↑

  103. Bluman, 800 F. Supp. 2d at 290 (citing Cabell v. Chavez-Salido, 454 U.S. 432, 439–40 (1982)). ↑

  104. United States v. Singh, 924 F.3d 1030, 1043 (9th Cir. 2019) (citing Morse v. Republican Party of Va., 517 U.S. 186, 203 n.21 (1996)). ↑

  105. Bluman, 800 F. Supp. 2d at 288. ↑

  106. Buckley v. Valeo, 424 U.S. 1, 19 (1976). In contrast, regulations on direct contributions to candidates are subject to a form of “closely drawn” scrutiny, demanding a sufficiently important interest and a means closely drawn to that interest. Id. at 25; McConnell v. Fed. Election Comm’n, 540 U.S. 93, 137 (2003). ↑

  107. Fed. Election Comm’n v. Wis. Right to Life, Inc., 551 U.S. 449, 464 (2007); see also Austin v. Mich. Chamber of Com., 494 U.S. 652, 658 (1990); First Nat’l Bank of Bos. v. Bellotti, 435 U.S. 765, 786 (1978); Buckley, 424 U.S. at 44–45; McConnell, 540 U.S. at 205. ↑

  108. Citizens United v. Fed. Election Comm’n, 558 U.S. 310, 340 (2010). ↑

  109. Bluman, 800 F. Supp. 2d at 285. ↑

  110. See, e.g., Holder v. Humanitarian L. Project, 561 U.S. 1, 33–34 (2010) (explaining that courts are not well placed to judge issues of national security and foreign affairs); Chi. & S. Air Lines, Inc. v. Waterman Steamship Corp., 333 U.S. 103, 111 (1948) (explaining that foreign policy concerns are political and reserved to the executive and legislative branches, not the judiciary). But see Martin S. Flaherty, Restoring the Global Judiciary: Why the Supreme Court Should Rule in U.S. Foreign Affairs 191 (2019) (describing the arc of judicial deference in foreign affairs); David Rudenstine, The Age of Deference: The Supreme Court, National Security, and the Constitutional Order 308 (2016) (explaining that the Constitution allocates primary responsibility for national security to the executive and Congress, but “primary responsibility is not exclusive responsibility”). ↑

  111. David Cole, The First Amendment’s Borders: The Place of Holder v. Humanitarian Law Project in First Amendment Doctrine, 6 Harv. L. & Pol’y Rev. 147, 158 (2012). ↑

  112. Humanitarian L. Project, 561 U.S. at 10, 40. ↑

  113. See Aziz Z. Huq, Preserving Political Speech from Ourselves and Others, 112 Colum. L. Rev. Sidebar 16, 18–20, 23–27 (2012); William D. Araiza, Citizens United, Stevens, and Humanitarian Law Project: First Amendment Rules and Standards in Three Acts, 40 Stetson L. Rev. 821, 822 (2011). ↑

  114. Bluman, 800 F. Supp. 2d at 285. Of course, Bluman involved foreigners speaking from within the United States—if those individuals had spoken while abroad, the opinion may have found no constitutional bar under which to scrutinize section 30121. ↑

  115. Citizens United v. Fed. Election Comm’n, 558 U.S. 310, 362 (2010) (“We need not reach the question whether the Government has a compelling interest in preventing foreign individuals or associations from influencing our Nation’s political process.”). ↑

  116. See Richard H. Fallon, Jr., Strict Judicial Scrutiny, 54 UCLA L. Rev. 1267, 1325 (2007). In reality, the division between the compelling interest and narrow tailoring is likely rather malleable, and a court will view these bifurcated steps in tandem. Id. at 1333. ↑

  117. Citizens United, 558 U.S. at 362. Before Bluman, political expenditures by foreigners represented “the 800-pound gorilla that the Supreme Court ha[d] never confronted.” Matt A. Vega, The First Amendment Lost in Translation: Preventing Foreign Influence in U.S. Elections After Citizens United v. FEC, 44 Loy. L.A. L. Rev. 951, 992 (2011). ↑

  118. Bluman, 800 F. Supp. 2d at 288. ↑

  119. See, e.g., Maryam Kamali Miyamoto, The First Amendment After Reno v. American-Arab Anti-Discrimination Committee: A Different Bill of Rights for Aliens?, 35 Harv. C.R.-C.L. L. Rev. 183, 184–88 (2000) (arguing that “First Amendment rights are too essential to the values of a democratic society to allow Congress or the courts to restrict them based on an individual’s citizenship status”); Massaro, supra note 61, at 665, 681–82 (“analyz[ing] whether foreign speakers can be restricted from making political campaign contributions or expenditures in ways that nonforeign speakers cannot”); David Cole, Are Foreign Nationals Entitled to the Same Constitutional Rights as Citizens?, 25 T. Jefferson L. Rev. 367, 376 (2003) (arguing that noncitizens deserve the same rights as citizens). ↑

  120. See Girouard v. United States, 328 U.S. 61, 64–65 (1946) (holding that an applicant for citizenship may not be rejected due to religious beliefs that prevent military service); see also Bridges v. Wixon, 326 U.S. 135, 148 (1945); id. at 161 (Murphy, J., concurring) (“[O]nce an alien lawfully enters and resides in this country he becomes invested with the rights guaranteed by the Constitution . . . .”). ↑

  121. See, e.g., Harisiades v. Shaughnessy, 342 U.S. 580, 591–92 (1952) (holding that the First Amendment does not prohibit the deportation of legal permanent residents for membership in the Communist Party); Galvan v. Press, 347 U.S. 522, 529–32 (1954) (holding the same). ↑

  122. See Agency for Int’l Dev. v. All. for Open Soc’y Int’l, Inc., 140 S. Ct. 2082, 2086 (2020) (“[I]t is long settled as a matter of American constitutional law that foreign citizens outside U.S. territory do not possess rights under the U.S. Constitution.”). ↑

  123. 408 U.S. 753, 765–66 (1972). ↑

  124. Bernal v. Fainter, 467 U.S. 216, 220 (1984) (“This exception has been labeled the ‘political function’ exception and applies to laws that exclude aliens from positions intimately related to the process of democratic self-government.”); Foley v. Connelie, 435 U.S. 291, 296 (1978) (“[A] State may deny aliens the right to vote, or to run for elective office, for these lie at the heart of our political institutions.”); Cabell v. Chavez-Salido, 454 U.S. 432, 439 (1982) (“The exclusion of aliens from basic governmental processes is not a deficiency in the democratic system but a necessary consequence of the community’s process of political self-definition.”). ↑

  125. See Amandeep S. Grewal, The Foreign Emoluments Clause and the Chief Executive, 102 Minn. L. Rev. 639, 644–45 (2017) (discussing Framers’ statements on foreign influence); Karl A. Racine & Elizabeth Wilkins, Enforcing the Anti-Corruption Provisions of the Constitution, 13 Harv. L. & Pol’y Rev. 449, 456–58 (2019) (describing the concerns underlying the Emoluments Clause); Vega, supra note 116, at 960 (detailing the Framers’ fears of foreign corruption); Marissa L. Kibler, Note, The Foreign Emoluments Clause: Tracing the Framers’ Fears About Foreign Influence over the President, 74 N.Y.U. Ann. Surv. Am. L. 449, 465–70 (2019) (discussing the Emoluments Clause as a bulwark against foreign influence); Zephyr Teachout, The Anti-Corruption Principle, 94 Cornell L. Rev. 341, 352–53, 358 (2009) (outlining a constitutional principle against corruption based in part on fear of foreign corruption). ↑

  126. The Federalist No. 22, at 112 (Alexander Hamilton) (Ian Shapiro ed., 2009). ↑

  127. The Farewell Address of George Washington 40 (Frank W. Pine, ed., 1911) (“Against the insidious wiles of foreign influence . . . the jealousy of a free people ought to be constantly awake, since history and experience prove that foreign influence is one of the most baneful foes of republican government.”). ↑

  128. See U.S. Const. art. I, § 9, cl. 8 (the Emoluments Clause). ↑

  129. Teachout, supra note 124, at 358. ↑

  130. See Vega, supra note 116, at 1004. ↑

  131. See generally RonNell Andersen Jones, Press Speakers and the First Amendment Rights of Listeners, 90 U. Colo. L. Rev. 499 (2019) (arguing that the “unique features” of speaker-listener relationships “should lead to greater appreciation of the press as a special institutional speaker and to greater protection for newsgathering performed on behalf of listeners” under the First Amendment); Joseph Thai, The Right to Receive Foreign Speech, 71 Okla. L. Rev. 269 (2018) (examining First Amendment coverage of speech by foreign speakers “on the listener’s end of the speech relationship”); Michael Kagan, When Immigrants Speak: The Precarious Status of Non-Citizen Speech Under the First Amendment, 57 B.C. L. Rev. 1237 (2016) (calling for the Supreme Court to revisit questions concerning immigrant free speech “because current case law is in tension with other principles of free speech law, especially the prohibition on identity-based speech restrictions as articulated in Citizens United v. FEC”); Tribe & Matz, supra note 88, at 118–19 (discussing the Supreme Court’s treatment of whether foreign corporations can spend money on American elections). ↑

  132. Citizens United v. Fed. Election Comm’n, 558 U.S. 310, 356 (2010). The quote continues, “The First Amendment confirms the freedom to think for ourselves.” This thread continues elsewhere in the opinion, where the Court finds that “[t]he right of citizens to inquire, to hear, to speak, and to use information to reach consensus is a precondition to enlightened self-government and a necessary means to protect it.” Id. at 339 (emphasis added). ↑

  133. Lamont v. Postmaster Gen., 381 U.S. 301, 307 (1965) (“This amounts in our judgment to an unconstitutional abridgment of the addressee’s First Amendment rights.”). ↑

  134. Wash. State Grange v. Wash. State Republican Party, 552 U.S. 442, 454 (2008). ↑

  135. Red Lion Broad. Co. v. Fed. Commc’ns Comm’n, 395 U.S. 367, 390 (1969). ↑

  136. See Tribe & Matz, supra note 88, at 118 (“The logic of this argument seems unassailable, but if taken seriously, it suggests that we should not deny citizens access to political ideas that happen to be expressed by noncitizens.”). ↑

  137. See Bruce D. Brown, Alien Donors: The Participation of Non-Citizens in the U.S. Campaign Finance System, 15 Yale L. & Pol’y Rev. 503, 518 (1997); Vega, supra note 116, at 992; Anthony J. Gaughan, Putin’s Revenge: The Foreign Threat to American Campaign Finance Law, 62 Howard L.J. 855, 862 (2019). ↑

  138. See Massaro, supra note 61, at 666; Richard L. Hasen, Citizens United and the Illusion of Coherence, 109 Mich. L. Rev. 581, 609 (2011). ↑

  139. Harvard law professor John Coates noted that even ownership stakes smaller than 5% make the investor “theoretically capable of exerting influence on . . . corporate political spending.” Letter from John Coates, supra note 8, at 6. Coates also stated at an FEC hearing, “[T]he boards of companies that are confronted by 1% shareholders listen to them . . . . [T]hey don’t do what they say, necessarily, all the time, but they do engage with them.” John Coates, Harv. L. Sch., Federal Election Commission Forum: Corporate Political Spending and Foreign Influence 38 (June 23, 2016), https://www.fec.gov/resources/about-fec/commissioners/‌weintraub/text/Panel2-Complete.pdf [https://perma.cc/U8J5-EFN2]; see also John C. Coates IV, Thirty Years of Evolution in the Roles of Institutional Investors in Corporate Governance, in Research Handbook on Shareholder Power 79, 79–95 (Jennifer G. Hill & Randall S. Thomas eds., 2015) (discussing the increasing power of shareholders). ↑

  140. See, e.g., Blasius Indus. v. Atlas Corp., 564 A.2d 651, 659 (Del. Ch. 1988) (“The shareholder franchise is the ideological underpinning upon which the legitimacy of directorial power rests.”); Unocal Corp. v. Mesa Petroleum Co., 493 A.2d 946, 959 (Del. Ch. 1985). ↑

  141. Citizens United v. Fed. Election Comm’n, 558 U.S. 310, 370 (2010). ↑

  142. See Blasius, 564 A.2d at 659; Unocal, 493 A.2d at 959 (“If the stockholders are displeased . . . the powers of corporate democracy are at their disposal to turn the board out.”). ↑

  143. Blasius, 564 A.2d at 659; Lucian A. Bebchuk, The Myth of the Shareholder Franchise, 93 Va. L. Rev. 675, 688 (2007); Dov Solomon, The Voice: The Minority Shareholder’s Perspective, 17 Nev. L.J. 739, 756 (2017). For additional discussion on blockholders—shareholders owning greater than 5% of a corporation—see generally Alex Edmans, Blockholders and Corporate Governance (Nat’l Bureau of Econ. Rsch., Working Paper No. 19573, 2013), www.nber.org/papers/w19573.pdf [https://perma.cc/8MQ3-BYUW]; Anita Indira Anand, Shareholder-Driven Corporate Governance and Its Necessary Limitations: An Analysis of Wolf Packs, 99 B.U. L. Rev. 1515 (2019). ↑

  144. Citizens United, 558 U.S. at 477 (2010) (Stevens, J., concurring in part and dissenting in part). ↑

  145. Id. at 476 (2010) (Stevens, J., concurring in part and dissenting in part); Richard Briffault, The Uncertain Future of the Corporate Contribution Ban, 49 Val. U. L. Rev. 397, 448 (2015) (“Given management’s complete control over the decision whether to make campaign contributions, the ‘procedures of corporate democracy’ are inadequate to protect dissenting shareholder interests.”); Adam Winkler, Beyond Bellotti, 32 Loy. L.A. L. Rev. 133, 165 (1998) (“When a ‘corporation’ speaks, it is not the owners of the corporation (shareholders) who do so, it is those who exercise control of the corporation’s assets (management).”). ↑

  146. Adam Winkler, “Other People’s Money”: Corporations, Agency Costs, and Campaign Finance Law, 92 Geo L.J. 871, 874–75 (2004). ↑

  147. Citizens United, 558 U.S. at 477 (2010). ↑

  148. Joseph K. Leahy, Corporate Political Contributions as Bad Faith, 86 U. Colo. L. Rev. 477, 486 (2015). ↑

  149. Citizens United, 558 U.S. at 477 (2010). ↑

  150. Some proposed foreign-influence laws do target firms where a foreign national retains the power to appoint board members. See supra note 23. These provisions may be more effectively tailored to combat foreign activity. ↑

  151. The mid-1990s scandal surrounding Chinese political donations to the Democratic National Committee and other politically-affiliated groups formed the impetus for BCRA. However, the offending individuals—all Chinese citizens—attempted to donate the money directly to the political entities, rather than through a corporation. See Comm. on Governmental Affs., supra note 75, at 35–41. Another report supporting foreign-influence laws points to five prosecutions where foreigners funneled money through shell corporations, foreign-controlled U.S. corporations, and straw men. Sozan, supra note 9, at 16–17. ↑

  152. See 52 U.S.C. § 30121 (2018). ↑

  153. This dearth of examples may prove irrelevant; the Court’s decision in Buckley, for example, appeared unconcerned that the government could not show significant evidence of corruption when upholding FECA’s contribution limits. Buckley v. Valeo, 424 U.S. 1, 29–30 (1976). But see Citizens United, 558 U.S. at 360–61 (finding relevant that no evidence was presented showing that independent expenditures lead to corruption). ↑

  154. John C. Coates IV, Ronald A. Fein, Kevin Crenny & L. Vivian Dong, Quantifying Foreign Institutional Block Ownership at Publicly Traded U.S. Corporations 8 (Harv. John M. Olin Ctr. for L., Econ., & Bus., Discussion Paper No. 888, 2016), http://www.law.harvard.‌edu/programs/olin_center/papers/pdf/Coates_888.pdf [https://perma.cc/B6FZ-W6GN]. ↑

  155. See Sozan, supra note 9, at 42. ↑

  156. Gwladys Fouche & Alister Doyle, Norway Wealth Fund to Assess Climate Risks in Power, Oil, Materials, Reuters (Feb. 27, 2018), https://www.reuters.com/article/us-norway-swf-idUKKCN1GB0Y7 [https://perma.cc/NHW3-BSZR]. ↑

  157. The Norwegian pension fund held stakes of at least 1% in each of these companies as of early 2021. See, e.g., CNBC Ownership Database, https://www.cnbc.com/quotes/?symbol=‌AAPL&qsearchterm=appl&tab=ownership (last accessed Mar. 25, 2021) [https://perma.cc/‌3Y43-NMXW]. ↑

  158. See Sozan, supra note 9, at 42. ↑

  159. See Rosenthal & Austin, supra note 13, at 928; Steven M. Rosenthal, Slashing Corporate Taxes: Foreign Investors Are Surprise Winners, 157 Tax Notes 559, 564 (2017). ↑

  160. Passive investors generally do not gain contractual rights to select board members, cannot access sensitive data, and do not influence decisions outside of voting through shares, among other characteristics. See 31 C.F.R. §§ 800.223, 800.211(b) (2020). ↑

  161. 31 C.F.R. § 800.302 (2019). ↑

  162. See 47 U.S.C. § 310(b)(3)–(4); see also Moving Phones P’ship L.P. v. Fed. Commc’n Comm’n, 998 F.2d 1051, 1055–56 (D.C. Cir. 1993) (upholding federal law allowing denial of applications to construct and operate cellular systems where the applicants were more than 20% foreign-owned, based on a national security rationale). ↑

  163. See 12 C.F.R. § 225.41(c)(1)–(2) (2012). ↑

  164. See Randy Elf, The Constitutionality of State Law Triggering Burdens on Political Speech and the Current Circuit Splits, 29 Regent U. L. Rev. 39, 41 (2016). ↑

  165. Buckley v. Valeo, 424 U.S. 1, 40–41. The Court found similar issues compelling in Federal Election Commission v. Wisconsin Right to Life, Inc., 551 U.S. 449, 469 (2007). ↑

  166. Citizens United v. Fed. Election Comm’n, 558 U.S. 310, 324, 335 (2010). ↑

  167. Letter from John Coates, supra note 8, at 10. ↑

  168. Id. at 11–12. ↑

  169. See, e.g., Laird v. Tatum, 408 U.S. 1, 11 (1972). ↑

  170. See, e.g., S. 393, 191st Gen. Ct. (Mass. 2019). ↑

  171. St. Petersburg, Fl., Mun. Code ch. 10, § 10.62 (2019). ↑

  172. Seattle, Wash., Mun. Code tit. 2, ch. 2.04, § 370(E)(2) (2020). ↑

  173. Seattle, Wash., Mun. Code tit. 2, ch. 2.04, § 400 (2020). ↑

  174. This lack of narrow tailoring may be so pronounced as to indicate pretextual motives. Then-Professor Elena Kagan notes that “notwithstanding the Court’s protestations in O’Brien . . . First Amendment law . . . has as its primary, though unstated, object the discovery of improper governmental motives.” Elena Kagan, Private Speech, Public Purpose: The Role of Governmental Motive in First Amendment Doctrine, 63 U. Chi. L. Rev. 413, 414 (1996). This ancillary motive may include counteracting the effects of Citizens United. ↑

  175. The laws also lead to a result allowing some corporations to speak while silencing others. The Citizens United majority criticized regulations that produce this outcome. See Citizens United v. Fed. Election Comm’n, 558 U.S. 310, 324 (2010). ↑

  176. First Amendment controversies, and those in the campaign finance space in particular, often include claims of overbreadth, where laws leading to a “substantial number of impermissible applications” are found unconstitutional. New York v. Ferber, 458 U.S. 747, 771 (1982). Foreign-influence laws are not vulnerable to separate claims of overbreadth because the reason the law bars one firm from engaging in independent expenditures—a foreigner’s 1% stake in the company—is the exact same reason for restrictions on all other firms with similar ownership stakes. The law is either valid in all applications, or valid in no application. This means that overbreadth and narrow tailoring are two sides of the same coin in relation to foreign-influence laws. See also Citizens United, 558 U.S. at 362 (criticizing the underinclusive and overinclusive nature of legislation). ↑

  177. For example, in Buckley, the Court considered whether bribery laws alone would be effective enough to root out corruption arising from unregulated contributions to political candidates. See Buckley v. Valeo, 424 U.S. 1, 27–28 (1976). ↑

  178. See Crosby v. Nat’l Foreign Trade Council, 530 U.S. 363, 372 (2000). ↑

  179. Id. at 372–73; Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230 (1947); Caleb Nelson, Preemption, 86 Va. L. Rev. 225, 227–28 (2000). ↑

  180. Crosby, 530 U.S. at 368, 373–74. ↑

  181. Foreign-influence laws may also implicate foreign affairs preemption. See Am. Ins. Ass’n v. Garamendi, 539 U.S. 396, 413 (2003); Zschernig v. Miller, 389 U.S. 429, 432 (1968); Jack Goldsmith, Statutory Foreign Affairs Preemption, 2000 Sup. Ct. Rev. 175, 203–05 (2000). However, the laws do not target foreigners or foreign investors, but rather U.S. corporations. Negative effects on U.S. foreign relations are also difficult to discern. ↑

  182. This determination may also conflict with the internal affairs doctrine, under which the state of incorporation should decide core issues regarding a corporation’s internal affairs. This might include whether the corporation is in fact a U.S. entity. See Frederick Tun, Before Competition: Origins of the Internal Affairs Doctrine, 33 J. Corp. L. 33, 39–41 (2006). ↑

  183. CNBC Ownership Database, supra note 156. ↑

  184. See Bluman v. Fed. Election Com’n, 800 F. Supp. 2d 281, 290 (D.D.C. 2011). ↑

  185. Harisiades v. Shaughnessy, 342 U.S. 580, 588–89 (1952). ↑

  186. Hines v. Davidowitz, 312 U.S. 52, 65–68 (1941). ↑

  187. Toll v. Moreno, 458 U.S. 1, 17 (1982). ↑

  188. See Cristina M. Rodríguez, The Significance of the Local in Immigration Regulation, 106 Mich. L. Rev. 567, 613 (2008). ↑

  189. 130 U.S. 581, 605–06 (1889). ↑

  190. Id. at 606. ↑

  191. Although local and state governments retain significant power over elections, the Supreme Court’s relevant decisions do not reach the issue of foreign entities. James v. Bowman, 190 U.S. 127, 142 (1903), and Oregon v. Mitchell, 400 U.S. 112, 125 (1970), both champion local power over elections. Neither case applies directly to questions involving foreign citizens. See United States v. Singh, 924 F.3d 1030, 1043 (9th Cir. 2019) (vacated on other grounds). ↑

  192. 52 U.S.C. § 30143 (2018). ↑

  193. See Emily’s List v. Fed. Election Comm’n, 581 F.3d 1, 20 (D.C. Cir. 2009) (citing McConnell v. FEC, 540 U.S. 93, 122, 124 (2003)). ↑

  194. U.S. Const., art. I, § 4; McConnell v. Fed. Election Comm’n, 540 U.S. 93, 186 (2003). ↑

  195. The FEC has determined that all of the statute’s prohibitions apply to state and local elections, not just the prohibitions of section 30121(a)(1)(A). See 11 C.F.R. § 110.20(f) (2020). For the FEC’s reasoning, see Expenditures, Independent Expenditures, and Disbursements, 67 Fed. Reg. 69,945 (Nov. 19, 2002). ↑

  196. United States v. Singh, 924 F.3d 1030, 1042 (9th Cir. 2019). ↑

  197. See 22 U.S.C. § 611. ↑

  198. The Court could, for example, uphold strict foreign-influence laws based on the rationale explained in Bluman. This would represent doctrinal incoherence, and it would further entangle the disorderly environment of campaign finance law. See Hasen, supra note 137, at 610. ↑

  199. See, e.g., Leo E. Strine, Jr., Lawrence A. Hamermesh, R. Franklin Balotti & Jeffrey M. Gorris, Loyalty’s Core Demand: The Defining Role of Good Faith in Corporation Law, 98 Geo. L.J. 629, 640–45 (2010) (describing duty, loyalty, and good faith). ↑

  200. See First Nat’l Bank of Bos. v. Bellotti, 435 U.S. 765, 794–95 (1978); see also McConnell v. Fed. Election Comm’n, 540 U.S. 93, 324 (2003) (Kennedy, J., concurring in part and dissenting in part) (referring to the same issue raised in Bellotti). ↑

  201. Citizens United v. Fed. Election Comm’n, 558 U.S. 310, 361–62, 370 (2010). ↑

  202. The business judgment rule is “a presumption that in making a business decision the directors of a corporation acted on an informed basis, in good faith and in the honest belief that the action taken was in the best interests of the company.” Aronson v. Lewis, 473 A.2d 805, 812 (Del. 1984); see also Andrew S. Gold, Dynamic Fiduciary Duties, 34 Cardozo L. Rev. 491, 499–500 (2012) (discussing the “tremendous amount of discretion” the business judgment rule affords to managers). ↑

  203. See René Reich-Graefe, Deconstructing Corporate Governance: Absolute Director Primacy, 5 Brook. J. Corp. Fin. & Com. L. 341, 370 (2011). ↑

  204. See id.; Michelle M. Harner & Jamie Marincic, The Naked Fiduciary, 54 Ariz. L. Rev. 879, 889 (2012); Kelli A. Alces, Debunking the Corporate Fiduciary Myth, 35 J. Corp. L. 239, 240 (2009). ↑

  205. Citizens United, 558 U.S. at 477 (Stevens, J., concurring in part and dissenting in part) (“In practice, however, many corporate lawyers will tell you that these rights are so limited as to be almost nonexistent . . . .” (internal quotations omitted)). ↑

  206. In this sense, foreign-influence laws may be self-refuting. If foreigners represent 5% of a firm’s ownership, the other 95% of non-foreign owners should in theory counteract that influence. ↑

  207. See Citizens United, 558 U.S. at 366–67; Buckley v. Valeo, 424 U.S. 1, 64 (1976); McConnell v. Fed. Election Comm’n, 540 U.S. 93, 201 (2003). ↑

  208. Citizens United, 558 U.S. at 366–71. ↑

  209. 52 U.S.C. § 30120 (2018). ↑

  210. 52 U.S.C. §§ 30120(a)(3), (d)(2) (2018). ↑

  211. Political activities are defined broadly in 22 U.S.C. § 611(o) (2018). ↑

  212. 22 U.S.C. § 611(c) (2018). ↑

  213. Meese v. Keene, 481 U.S. 465, 480 (1987). ↑

  214. 22 U.S.C. § 614(b) (2018). ↑

From Massive Resistance to Quiet Evasion: The Struggle for Educational Equity and Integration in Virginia

This fifty-year retrospective on Virginia’s 1971 constitutional revision argues that state constitutional language has both the power and promise to effect policy change in the area of educational equity.

In the years after Brown, Virginia dramatically resisted efforts to integrate. Then the Commonwealth embraced a moderate stance on integration, as part of its 1971 constitutional revision, to end de jure segregation and provide a “quality” education for “all children.” Looking to new quality standards produced by a Board of educational experts, Virginia optimistically turned to the technocracy movement, hoping to take education out of politics. New aspirational language was meant to deepen the legislature’s commitment to public schools and repair Massive Resistance’s damage to public schools.

Looking back fifty years later, however, it is clear that this constitutional revision, while successfully meeting its goals around Massive Resistance, did not address underlying problems it is often assumed to have solved, such as inadequate funding or persistent de facto segregation. Other states’ journeys battling the same issues have looked different, and these differences highlight some of the strengths and weaknesses of Virginia’s approach.

This Note ultimately argues that the 1971 constitutional revision never intended to solve these problems, and thus, the work for educational advocates right now is not to come up with more clever litigation, but to convince Virginians to agree on a fairer school system—perhaps through a new constitutional revision. In the context of new public concern about racial justice following George Floyd’s death and the Coronavirus crisis, I argue that Virginia today may finally be ready to finish the work started in 1971.

Introduction

In the first years of Virginia’s existence, Thomas Jefferson proposed a radical idea: Widespread public education, for the purpose of preserving democracy.1 1.2 A.E. Dick Howard, Commentaries on the Constitution of Virginia 879 (1974).Show More His vision is today enshrined in the Commonwealth’s Bill of Rights, which declares “[t]hat free government rests, as does all progress, upon the broadest possible diffusion of knowledge,” and that the Commonwealth thus should give its people the opportunity to develop their talents through “an effective system of education throughout the Commonwealth.”2 2.Va. Const. art. I, § 15.Show More He proposed a public education system for all, funded by taxes—a revolutionary idea at the time.3 3.Howard, supra note 1, at 879–80.Show More

Virginia’s leaders did not adopt Jefferson’s plan for public education.4 4.Id. at 880.Show More In fact, it was not until after the Civil War, at the behest of a compromise with Congress for readmission to the Union5 5.Derek W. Black, The Constitutional Compromise to Guarantee Education, 70 Stan. L. Rev. 735, 783 (2018).Show More (and, as at least one scholar has suggested, primarily a result of advocacy by ex-slaves6 6.James D. Anderson, The Education of Blacks in the South, 1860–1935, at 4–5, 15–16 (1988).Show More), that Virginia reluctantly began to build a universal public education system.

By the middle of the twentieth century, public education had been quietly adopted as a staple of Virginian life, but it was neither a priority nor a value statement­­—unequal, segregated, and never particularly well-funded.7 7.See, e.g., Richard G. Salmon, The Evolution of Virginia Public School Finance: From the Beginnings to Today’s Difficulties, 36 J. Educ. Fin. 143, 146–48 (2010).Show More Virginia’s most famous public education moment—its participation in “Massive Resistance” in the years following Brown v. Board of Education—instead showed the Commonwealth’s willingness to sacrifice its children’s education to hold onto the racist ideals of its past.8 8.See infra Part I.Show More Perhaps no state was party to more high-profile segregation litigation in those years than Virginia, and unfortunately on the wrong side of history.9 9.See, e.g., Brown v. Bd. of Educ., 347 U.S. 483 (1954) (incorporating Davis v. Cty Sch. Bd.); Griffin v. Cty. Sch. Bd., 377 U.S. 218 (1964); Green v. Cnty. Sch. Bd., 391 U.S. 430 (1968), Richmond Sch. Bd. v. Bd. of Educ., 412 U.S. 92 (1973) (per curiam).Show More

But in 1971, Virginia’s leaders finally sought to change this relationship to public education by enacting major constitutional changes to the Commonwealth’s education article.10 10.See infra Part II.Show More This note analyzes the work the 1971 revision has done in Virginia’s public grade schools during the years since from both a legal and policy perspective. The note ultimately concludes that the results achieved—the primacy and complexity of the Standards of Quality in Virginia’s public schools; the new balance of power between the Board of Education, the General Assembly, and local school boards; and the eradication of de jure segregation while preserving options for de facto segregation—were close to what the 1971 revisers intended. The revision solidified a technocratic approach to educational inputs in the Commonwealth, and it ensured an increased centralization of funding structures and decision-making that would reject any future attempts at racial segregation through local school closures. Looking back on the era that saw Virginia’s “Massive Resistance” swept away and a newfound optimism about effective, non-partisan policymaking fall into place, I conclude that the revision of the education article was a success of its time.

However, today Virginia’s schools face persistent problems of equity. Though on average, Virginia’s public schools produce high quality results, that quality is not experienced equally by all students. In fact, Virginia’s poor students receive significantly less funding than their wealthier counterparts,11 11.Bruce D. Baker, Danielle Farrie & David Sciarra, Is School Funding Fair? A National Report Card 11 (7th ed. 2018), https://drive.google.com/file/d/1BTAjZuqOs8pEGWW‌6oUBotb6omVw1hUJI/view [https://perma.cc/T2JL-23SB].Show More despite having significantly more need, and they perform considerably worse according to the National Assessment of Educational Progress (NAEP).12 12.See Achievement Gaps Dashboard, Nation’s Rep. Card, https://www.nations‌reportcard.gov/dashboards/‌achievement_gaps.aspx [https://perma.cc/9EMX-V2MD] (last visited June 2, 2020) (follow “Dashboard” hyperlink; then search “Virginia” for the Jurisdiction field, “Eligible for National School Lunch Program” for the “Student Group 1” field, and “Not eligible for National School Lunch Program” for the “Student Group 2” field) (comparing achievement gaps in Virginia between students who are and who are not eligible for the National School Lunch Program).Show More Nor is segregation gone. Though de jure segregation and public school defunding have been successfully eradicated, de facto segregation is now on the rise. The number of hyper-segregated, highly impoverished schools has nearly doubled in Virginia since 2003.13 13.Chris Duncombe & Michael Cassidy, Increasingly Separate and Unequal in U.S. and Virginia Schools, Commonwealth Inst. (Nov. 4, 2016), https://www.thecommonwealth‌institute.org/2016/11/04/increasingly-separate-and-unequal-in-u-s-and-virginia-schools [https://perma.cc/C6R2-NY9Q].Show More

While many scholars and advocates argue that such inequities comprise state constitutional violations best fixed by a court, I conclude that this is simply not so in Virginia. The 1971 revision of the Virginia Constitution was not meant to solve these problems.14 14.In fact, it is not clear that education policy is designed to solve such problems by itself—a holistic approach that includes addressing income inequality, healthcare, and housing is likely needed. Such an argument, however, is outside the scope of this Note.Show More In fact, Virginia’s voters have never had a state-wide discussion of educational equity and integration, nor have they been forced to make a commitment to such values.

As our nation has been rocked by protests against racial injustice and ravaged by a new pandemic that has wreaked havoc on communities of color, in particular, issues of race and inequity have been shoved to the forefront of public dialogue in a way few of us have before confronted. The time is ripe for Virginia to finally finish the work begun fifty years ago. A new constitutional amendment to Virginia’s education article could facilitate this conversation. In 1971, Virginia’s leaders wanted to make education a priority for the first time and decided to take the first step away from active segregation. Today, it is time to reshape our education article yet again, with a vision of equity and excellence that will finish the journey away from segregation and finally step toward a shared, fair shot at the future for our children.

 

  1. * J.D., University of Virginia School of Law, 2021; M.P.P., Frank Batten School of Leadership and Public Policy, 2021; M.Ed., University of Massachusetts, 2013. I am sincerely grateful to Professor A.E. Dick Howard for guiding my research for this Note, and to Professors Kimberly Robinson and Andy Block for providing me with important learning experiences that expanded my knowledge of education and policy in Virginia. I also want to express my gratitude to the members of the Virginia Law Review who assisted in the editing and preparation of the Note—particularly Matthew West and Matthew Kincaid. ↑

  2. 2 A.E. Dick Howard, Commentaries on the Constitution of Virginia 879 (1974). ↑

  3. Va. Const. art. I, § 15. ↑

  4. Howard, supra note 1, at 879–80. ↑

  5. Id. at 880. ↑

  6. Derek W. Black, The Constitutional Compromise to Guarantee Education, 70 Stan. L. Rev

    .

    735, 783 (2018). ↑

  7. James D. Anderson, The Education of Blacks in the South, 1860–1935, at 4–5, 15–16 (1988). ↑

  8. See, e.g., Richard G. Salmon, The Evolution of Virginia Public School Finance: From the Beginnings to Today’s Difficulties, 36 J. Educ. Fin. 143, 146–48 (2010). ↑

  9. See infra Part I. ↑

  10. See, e.g., Brown v. Bd. of Educ., 347 U.S. 483 (1954) (incorporating Davis v. Cty Sch. Bd.); Griffin v. Cty. Sch. Bd., 377 U.S. 218 (1964); Green v. Cnty. Sch. Bd., 391 U.S. 430 (1968), Richmond Sch. Bd. v. Bd. of Educ., 412 U.S. 92 (1973) (per curiam). ↑

  11. See infra Part II. ↑

  12. Bruce D. Baker, Danielle Farrie & David Sciarra, Is School Funding Fair? A National Report Card 11 (7th ed. 2018), https://drive.google.com/file/d/1BTAjZuqOs8pEGWW‌6oUBotb6omVw1hUJI/view [https://perma.cc/T2JL-23SB]. ↑

  13. See Achievement Gaps Dashboard, Nation’s Rep. Card, https://www.nations‌reportcard.gov/dashboards/‌achievement_gaps.aspx [https://perma.cc/9EMX-V2MD] (last visited June 2, 2020) (follow “Dashboard” hyperlink; then search “Virginia” for the Jurisdiction field, “Eligible for National School Lunch Program” for the “Student Group 1” field, and “Not eligible for National School Lunch Program” for the “Student Group 2” field) (comparing achievement gaps in Virginia between students who are and who are not eligible for the National School Lunch Program). ↑

  14. Chris Duncombe & Michael Cassidy, Increasingly Separate and Unequal in U.S. and Virginia Schools, Commonwealth Inst. (Nov. 4, 2016), https://www.thecommonwealth‌institute.org/2016/11/04/increasingly-separate-and-unequal-in-u-s-and-virginia-schools [https://perma.cc/C6R2-NY9Q]. ↑

  15. In fact, it is not clear that education policy is designed to solve such problems by itself—a holistic approach that includes addressing income inequality, healthcare, and housing is likely needed. Such an argument, however, is outside the scope of this Note. ↑

  16. Howard, supra note 1, at 880–81; Salmon, supra note 7, at 144–45. ↑

  17. Howard, supra note 1, at 881 (citing Va. Const. of 1870, art. VIII, § 1). ↑

  18. Id. at 881–82 (citing Va. Const. of 1870, art. VIII, § 3). ↑

  19. Salmon, supra note 7, at 146. ↑

  20. Id. ↑

  21. Howard, supra note 1, at 882. ↑

  22. Va. Const. of 1902, art. IX, § 140. ↑

  23. Salmon, supra note 7, at 146–48. ↑

  24. Id. at 147­–48. ↑

  25. Id. ↑

  26. Va. Const. of 1902, art. II, § 21; Douglas Smith, “When Reason Collides with Prejudice”: Armistead L. Boothe and the Politics of Desegregation in Virginia, 1948–1963, 102 Va. Mag. Hist. & Biography 5, 6 (1994). ↑

  27. Va. Const. of 1902, art. II, § 19; Wythe W. Holt, Jr., The Virginia Constitutional Convention of 1901­­–1902: A Reform Movement Which Lacked Substance, 76 Va. Mag. Hist. & Biography 67, 96 (1968). ↑

  28. Smith, supra note 25, at 6. ↑

  29. Id. See generally J. Harvie Wilkinson, III, Harry Byrd and the Changing Face of Virginia Politics 1945–1966 (1968) (describing the political structures supporting Byrd and the changing role of Byrd’s organization in Virginia politics). ↑

  30. See, e.g., Richard F. Weingroff, Senator Harry Flood Byrd of Virginia—the Pay-As-You-Go Man, U.S. Dep’t of Transp., https://www.fhwa.dot.gov/infrastructure/byrd.cfm [https://perma.cc/Y9Z8-MVDY] (last visited June 4, 2021) (describing Byrd’s gubernatorial platform as a plan “to institute the best methods of efficiency and economy in State affairs”); Massive Resistance, Va. Museum Hist. & Culture, https://www.virginiahistory.org/‌collections-and-resources/virginia-history-explorer/civil-rights-movement-virginia/massive [https://perma.cc/CXA6-CRS3] (last visited Sept. 1, 2020) (describing Byrd’s leadership of Massive Resistance). ↑

  31. J. Rupert Picott, The Status of Educational Desegregation in Virginia, 25 J. Negro Educ

    .

    345, 346 (1956). ↑

  32. Id. at 346–47 (citing Gray Commission, Public Education Report of the Commission to the Governor of Virginia 9, 11 (1955)). ↑

  33. Charles H. Ford & Jeffrey L. Littlejohn, Reconstructing the Old Dominion: Lewis F. Powell, Stuart T. Saunders, and the Virginia Industrialization Group, 1958–65, 121 Va. Mag. Hist. & Biography 147–48 (2013). ↑

  34. Va. Museum Hist. & Culture, supra note 29. ↑

  35. Harrison v. Day, 106 S.E.2d 636, 646 (Va. 1959). ↑

  36. Id. at 647. ↑

  37. The Closing of Prince Edward County Schools, Va. Museum Hist. & Culture, https://www.virginiahistory.org/collections-and-resources/virginia-history-explorer/civil-rights-movement-virginia/closing-prince [https://perma.cc/FX34-5RQ5] (last visited Sept. 1, 2020). ↑

  38. Id. See generally Kristen Green, Something Must Be Done About Prince Edward County (2015) (recounting the struggle for integration in the county). ↑

  39. Va. Museum Hist. & Culture, supra note 36; see also Griffin v. Cty. Sch. Bd., 377 U.S. 218, 231 (1964) (explaining that this policy existed “for one reason, and one reason only: to ensure . . . that white and colored children in Prince Edward County would not, under any circumstances, go to the same school”). ↑

  40. Griffin, 377 U.S. at 230. ↑

  41. Id. at 232. Note that this litigation is actually an extension of the Brown v. Board litigation from Prince Edward County. Interestingly, the equality at issue was not equal treatment of races but equal treatment of students in different counties in Virginia. The Court, however, also saw the practice as a thinly veiled attempt at continuing the segregation outlawed by Brown. See id. at 220–21. ↑

  42. Cty. Sch. Bd. v. Griffin, 133 S.E.2d 565 (Va. 1963). ↑

  43. Id. at 565, 578. ↑

  44. Va. Const. of 1902, art. IX, § 129 (“The General Assembly shall establish and maintain an efficient system of public free schools throughout the State.”). ↑

  45. Griffin, 133 S.E.2d at 573. ↑

  46. Id. at 577–78 (“It is for the General Assembly first to determine whether the failure of a locality to cooperate and assume its responsibility renders the system inefficient. It doubtless has the power to shape its appropriations for public schools under § 135 of the Constitution to correct an inefficiency in its established system, but that is in the area of legislative discretion, not in itself a constitutional requirement. The question of the efficiency of the system and whether it meets the constitutional requirement of § 129 becomes a matter of law only if it clearly appears that the system has broken down and adherence to it amounts to a disregard of constitutional requirements.”). ↑

  47. Hullihen W. Moore, In Aid of Public Education: An Analysis of the Education Article of the Virginia Constitution of 1971, 5 U. Rich. L. Rev. 263, 266–67 (1971). ↑

  48. See Ford & Littlejohn, supra note 32, at 149; James H. Hershman, Jr., Massive Resistance Meets Its Match: The Emergence of a Pro-Public School Majority, in The Moderates’ Dilemma: Massive Resistance to School Desegregation in Virginia 104 (Matthew D. Lassiter & Andrew B. Lewis eds., 1998). ↑

  49. The Twenty-Fourth Amendment to the U.S. Constitution passed Congress in 1962 and was ratified in 1964, banning poll taxes for federal elections. Virginia was one of four states that tried to keep a state election poll tax in place, but was sharply admonished by the Supreme Court for doing so in Harper v. Virginia State Board of Elections. 383 U.S. 663, 666 (1966). ↑

  50. James R. Sweeney, Southern Strategies: The 1970 Election for the United States Senate in Virginia, 106 Va. Mag. Hist. & Biography 165, 166 (1998). ↑

  51. See, e.g., Markus Schmidt, The Voting Rights Act of 1965—How America Did Overcome, Rich. Times-Dispatch (Aug. 1, 2015), https://richmond.com/news/local/government-politics/the-voting-rights-act-of-1965—how-america-did-overcome/article_7d47ec7d-bf98-5014-8e25-5c72b2617a39.html [https://perma.cc/8XM5-MYFD]. ↑

  52. Baker v. Carr held that federal courts could review state redistricting choices, paving the way for Reynolds v. Sims, the case requiring state legislatures to apportion on a roughly equal population basis. Baker v. Carr, 369 U.S. 186, 197–98 (1962); Reynolds v. Sims, 377 U.S. 533, 575–77 (1964). See also, Sweeney, supra note 49, at 166 (“[T]he United States Supreme Court undermined the controlling influence of rural areas in the apportionment of state legislatures.”). ↑

  53. Sweeney, supra note 49, at 165–66. ↑

  54. M. Caldwell Butler, A Republican Looks at the 1968 Virginia General Assembly, 45 U. Va. News Letter 1 (Inst. Gov’t, Charlottesville, Va.), Sept. 15, 1968. ↑

  55. A.E. Dick Howard, Adopting a New Constitution: Lessons from Virginia, in 1 State Constitutions for the Twenty-first Century: The Politics of State Constitutional Reform 77 (G. Alan Tarr & Robert F. Williams eds., 2005). ↑

  56. Id. at 74. ↑

  57. Id. at 74–75. ↑

  58. Id. at 76–77. ↑

  59. Id. at 77. ↑

  60. Id. ↑

  61. Id. at 82. ↑

  62. Id. at 83. ↑

  63. Id. at 78, 80–83. ↑

  64. Id. at 85. ↑

  65. Compare Va. Const. of 1902, art. IX, §§ 130, 132, with Va. Const. art. VIII, §§ 4–5. ↑

  66. Compare Va. Const. of 1902, art. IX, § 139, with Va. Const. art. VIII, § 3. ↑

  67. Compare Va. Const. of 1902, art. IX, § 131, with Va. Const. art. VIII, § 6. ↑

  68. Compare Va. Const. of 1902, art. IX, §§ 134–135, with Va. Const. art. VIII, § 8. ↑

  69. Report of the School Division Criteria Study Commission to the Governor and the General Assembly of Virginia, S. Doc. No. 5, at 7 (1973). This focus on district size and efficiency was a reflection of the technocratic movement of the time. Emmy Lindstam, Support for Technocratic Decision-Making in the OECD Countries: Attitudes Toward Apolitical Politics 5–6 (May 2014) (B.A. thesis, University of Barcelona) (on file with University of Barcelona). ↑

  70. Compare Va. Const. of 1902, art. IX, §§ 133, 136, with Va. Const., art. VIII, § 7. While district consolidation was a controversial issue on the subject of integration in many ways, the provision ultimately at issue here was only technical—solving the problem of multiple school boards in one county. The originally proposed Section 5(a), unrelated, suggested that the Board have sole power to draw division lines, excluding the General Assembly from the consolidation process. Howard, supra note 1, at 920–21. As ultimately passed, the General Assembly sets limits on this power. Va. Const., art. VIII, § 5(a). ↑

  71. Va. Const. of 1902, art. IX, § 140. ↑

  72. Comm’n on Const. Revision, The Constitution of Virginia: Report 256–57 (1969). ↑

  73. Hershman, supra note 47, at 104. ↑

  74. Comm’n on Const. Revision, supra note 71, at 254. ↑

  75. Scott v. Commonwealth, 443 S.E.2d 138, 142 (Va. 1994). ↑

  76. Comm’n on Const. Revision, supra note 71, at 99. ↑

  77. Howard, supra note 1, at 896. ↑

  78. Va. Const. of 1902, art. IX, § 129. ↑

  79. Va. Const. art. VIII, § 1. ↑

  80. Id. Note that the Commission did not discuss this choice directly in their commentary. Comm’n on Const. Revision, supra note 71, at 254–56. ↑

  81. Va. Const. art. VIII, § 1. ↑

  82. Comm’n on Const. Revision, supra note 71, at 257–58. ↑

  83. 310 F. Supp. 572 (W.D. Va. 1969). ↑

  84. Howard, supra note 1, at 895–96. ↑

  85. Compare Va. Const. of 1902, art. IX, § 138, with Va. Const. art. VIII, § 3 (describing compulsory education standards). In 1971, the drafters included that the “appropriate age” of compulsory education was “to be determined by law.” Id. ↑

  86. Moore, supra note 46, at 278–79. ↑

  87. Id. at 280–81. ↑

  88. Va. Const. art. VIII, § 2. ↑

  89. Id. ↑

  90. Moore, supra note 46, at 276–77. ↑

  91. For a literature review of technocracy that highlights the widespread optimism in the 1960s and 70s that “technocracy appeared to be a feasible future form of government[,]” see Lindstam, supra note 68. ↑

  92. The standards are currently found in the Code of Virginia. See Va. Code Ann. §§ 22.1-253.13:1–22.1-253.13:9 (2020). ↑

  93. It is important to clarify that this Note speaks of retrospectively rejecting Massive Resistance as a different object than prospectively achieving integration. Modern readers may struggle to differentiate the two, seeing all forms of segregation as equally bad. However, to a 1971 reviser, spurning Massive Resistance was a very different political choice than embracing racial integration. ↑

  94. See Lindstam, supra note 68, at 5 and accompanying text. ↑

  95. Va. Const. art. VIII, § 2. ↑

  96. See, e.g., James E. Ryan, Five Miles Away, A World Apart: One City, Two Schools, and the Story of Educational Opportunity in Modern America 1–8 (2010). ↑

  97. Id. at 13. ↑

  98. Virginia Magazine highlighted the sudden (perhaps imagined) threat the public felt of “increasing budget deficits, higher local taxes, and the withdrawal of government spending streams that had lifted so many parts of the Old Dominion from structural underemployment[,]” including a concern that the federal government would withdraw its Naval Base and other investments from the state. Ford & Littlejohn, supra note 32, at 149–51. Business Week predicted a massive rise in local property taxes, and Dr. Loren A. Thompson called Massive Resistance an “Education Crisis” that was “the main reason that Virginia was falling behind other states in attracting new industries and businesses.” Id. at 154. In other words, negative press coverage about the state predicted economic harm to white elites, a prospect that moderates wanted to avoid. ↑

  99. Id. at 149, 152–54. ↑

  100. Hershman, supra note 47, at 104–05. ↑

  101. Va. Const. art. VIII, § 1. ↑

  102. Va. Const. art. VIII, § 2. ↑

  103. Howard, supra note 1, at 901. ↑

  104. Va. Const. art. VIII, §§ 2, 5(e); Howard, supra note 1, at 901–04. ↑

  105. Infra notes 110–14 and accompanying text. ↑

  106. 1972–73 Op. Va. Att’y Gen. 353. ↑

  107. 1975–76 Op. Va. Att’y Gen. 313. ↑

  108. 1980–81 Op. Va. Att’y Gen

    .

    79–85. ↑

  109. Id. ↑

  110. Acts of the Virginia legislature are granted a “presumption of constitutional validity.” Sch. Bd. v. Parham, 243 S.E.2d 468, 472 (Va. 1978). For the court to declare a statute unconstitutional requires a clear violation. A mere “shadow [of a doubt about constitutionality] is not enough.” Lipscomb v. Nuckols, 172 S.E. 886, 889 (Va. 1934). ↑

  111. Scott v. Commonwealth, 443 S.E.2d 138, 139 (Va. 1994). ↑

  112. Id. at 140. ↑

  113. Id. ↑

  114. Id. at 142. Note that Scott did leave open the possibility of an adequacy challenge; the Court indicated that students might have an individual right to a certain level of education. Id. (“[T]he Students do not contend that the manner of funding prevents their schools from meeting the standards of quality.”). ↑

  115. Va. Code Ann. § 22-19.1 (1973) (describing the issuance procedure). ↑

  116. See, e.g., 1972 Va. Acts 1032–36. ↑

  117. See 1984 Va. Acts 1572–76, 1655–59. ↑

  118. Joint Legislative Audit & Review Comm’n of the Va. Gen. Assembly (“JLARC”), Review of Elementary and Secondary School Funding 27 (2002), http://jlarc.virginia.gov/pdfs/reports/Rpt277.pdf [https://perma.cc/W8VG-AN4S]. ↑

  119. Va. Code Ann

    .

    § 22.1-18.01 (2020). ↑

  120. See Va. Bd. of Educ., October 2019 Meeting Update 3 (2019), https://www.vsba.org/images/uploads/October_2019_Meeting_Report.pdf [https://perma.cc/SM4R-JCQS]. ↑

  121. See Va. Att’y Gen., Opinion Letter (Jan. 4, 2019), https://www.oag.state.va.us/files/Opinions/2019/18-046-Opinion-to-Senator-Stanley-Issued.pdf [https://perma.cc/DPG8-JJXK]; 2002 Op. Va. Att’y Gen.

    54

    n

    .29

    . ↑

  122. Justin Mattingly, Schools Across Virginia, Richmond Region, Fare Better Under New Accreditation Standards, Rich. Times-Dispatch (Sept. 27, 2018), https://www.richmond.com/news/local/education/schools-across-virginia-richmond-region-fare-better-under-new-accreditation/article_ecaddfcd-9a08-534d-960f-9ab5266fc3cb.html [https://perma.cc/4WSB-R7X2] (demonstrating the Board’s effort to use data to evaluate schools more accurately); Va. Bd. of Educ., Comprehensive Plan

    : 2018–2023,

    at

    4–6

    (2017), https://www.doe.virginia.gov/boe/plan/comprehensive-plan.pdf [https://perma.cc/P9ZC-9ESH]; Va. Bd. of Educ., 2013 Annual Report on the Condition and Needs of Public Schools in Virginia app. A, at 36–37 (2013), https://www.doe.virginia.gov/boe/reports/annual_reports/2013_appendix_a_sol_history.pdf [https://perma.cc/7M78-HTXQ]. ↑

  123. See, e.g., Davis Burroughs, Virginia Board of Education Seeks Nearly $1 Billion in New K–12 Funding, Va. Dogwood (Oct. 17, 2019), https://vadogwood.com/2019/10/17/virginia-board-of-education-seeks-nearly-1-billion-in-new-k-12-funding/ [https://perma.cc/BJ4W-C22Y] (describing the Board’s 2019 political push for expanded at-risk funding in service of “equitable outcomes” for disadvantaged children). ↑

  124. Id. ↑

  125. Justin Mattingly, It Was a Landmark Year for Education Funding in Virginia—Until COVID-19, Rich. Times-Dispatch (Apr. 24, 2020), https://richmond.com/news/virginia/it-was-a-landmark-year-for-education-funding-in-virginia—until-covid-19/article_c50665a6-172d-5f56-a1b0-43240cfff68d.html [https://perma.cc/J4F9-5WH9]. ↑

  126. Professor Salmon suggests that the complexity of this formula was a direct response to Burruss v. Wilkerson and an attempt to avoid equal rights litigation over school funding. Salmon, supra note 7, at 151. ↑

  127. Id. at 152. ↑

  128. Id. at 152–53. ↑

  129. Id. at 153. ↑

  130. Va. Code Ann. § 22.1-199.1 (2020). ↑

  131. JLARC, supra note 117, at iv–vi; Salmon, supra note 7, at 155. ↑

  132. Schuyler VanValkenburg, Jeff Bourne & Mike Mullin, A Student Who Is Safe Is a Student Who Is Safe to Learn, Rich. Times-Dispatch

    (

    Mar. 31, 2019), https://www.richmond.com/opinion/columnists/vanvalkenburg-bourne-and-mullin-column-a-student-who-is-safe/article_db7679dc-4f32-50fc-901e-deeac5550033.html [https://perma.cc/6WUT-GVAS]. ↑

  133. Daniella Cheslow, In Shadow of Coronavirus, Virginia Lawmakers to Freeze New Spending in State Budget, WAMU 88.5 (Apr. 22, 2020), https://wamu.org/story/20/04/22/in-shadow-of-coronavirus-virginia-lawmakers-to-freeze-new-spending-in-state-budget/ [https://perma.cc/58FH-9UXM]. ↑

  134. Nat’l Educ. Ass’n, Rankings of the States 2018 and Estimates of School Statistics 2019, at 33 (2019), https://www.nea.org/sites/default/files/2020-06/2019%20Rankings%20and%20Estimates%20Report.pdf [https://perma.cc/3KFT-GFQ6]. ↑

  135. Editorial, Did the Virginia Supreme Court Show School Districts How to Sue Over Disparities?, Roanoke Times (Oct. 20, 2018), https://roanoke.com/opinion/editorials/‌editorial-did-the-virginia-supreme-court-show-school-districts-how-to-sue-over-disparities/article_f3e07697-879d-50d1-9ac9-573b741856c7.html [https://perma.cc/LF7H-HFMP]. ↑

  136. Baker et al., supra note 11, at

     

    11; Bruce Baker, Danielle Farrie, Theresa Luhm & David G. Sciarra, Is School Funding Fair? A National Report Card 5 (5th ed. 2016); Bruce D. Baker, David G. Sciarra & Danielle Farrie, Is School Funding Fair? A National Report Card 16 (3d ed. 2014); Bruce D. Baker, David G. Sciarra & Danielle Farrie, Is School Funding Fair? A National Report Card 14 (2d ed. 2012); Bruce D. Baker, David G. Sciarra & Danielle Farrie, Is School Funding Fair? A National Report Card 32 (2010). ↑

  137. Comm’n on Constitutional Revision, supra note 71, at 254. ↑

  138. Va. Const. art. VIII, § 1. ↑

  139. Ryan, supra note 95, at 5. ↑

  140. Id. at 55–109. ↑

  141. Id. at 56; Green v. Cty. Sch. Bd., 391 U.S. 430, 433–35 (1968); U.S. Comm’n on Civil Rights, Southern School Desegregation, 1966–67, at 45–47 (1967), https://www.crmvet.org/docs/ccr_sch_desegregation_south_6707.pdf [https://perma.cc/89N8-RAPJ]. ↑

  142. Ryan, supra note 95, at 56; The Memphis 13 (Daniel Kiel 2012), https://thememphis13.com [https://perma.cc/B65A-VV7G]. ↑

  143. Green, 391 U.S. at 437–41. ↑

  144. Ryan, supra note 95, at 72. ↑

  145. Bradley v. Sch. Bd., 345 F.2d 310, 316 (4th Cir. 1965). ↑

  146. Ryan, supra note 95, at 73; Bradley v. Sch. Bd., 416 U.S. 696, 701 (1974) (“[O]n March 10, 1970, petitioners filed with the District Court a motion for further relief in the light of the opinions of this Court in Green . . . .”). ↑

  147. Ryan, supra note 95, at 74; Bradley v. Sch. Bd., 317 F. Supp. 555, 578–79 (E.D. Va. 1970). ↑

  148. Ryan, supra note 95, at 74–82. ↑

  149. Id. at 82–84; Bradley v. Sch. Bd., 338 F. Supp. 67, 105 (E.D. Va. 1972). ↑

  150. Bradley v. Sch. Bd., 462 F.2d 1058, 1066 (4th Cir. 1972) (“We think that the root causes of the concentration of [B]lacks in the inner cities of America are simply not known . . . .”). ↑

  151. Rich. Sch. Bd. v. Bd. of Educ., 412 U.S. 92, 93 (1973). ↑

  152. Ryan, supra note 95, at 78, 80. ↑

  153. Id. at 80. ↑

  154. 418 U.S. 717, 752–53 (1974). ↑

  155. Id. at 745. ↑

  156. Kimberly Jenkins Robinson, Resurrecting the Promise of Brown: Understanding and Remedying How the Supreme Court Reconstitutionalized Segregated Schools, 88 N.C. L. Rev. 787, 817–19 (2010). ↑

  157. See Va. Code. Ann. § 22.1-25(A)(1)–(3) (2016) (“1. The school divisions as they exist on July 1, 1978, shall be and remain the school divisions of the Commonwealth until further action of the Board of Education taken in accordance with the provisions of this section except that when a town becomes an independent city, the town shall also become a school division. 2. No school division shall be divided or consolidated without the consent of the school board thereof and the governing body of the county or city . . . 3. No change shall be made in the composition of any school division if such change conflicts with any joint resolution . . . of the General Assembly . . . .”). Note that this statute strips the Board of its constitutional power to draw division lines in ways that best promote the standards of quality. See Angela Ciolfi, Shuffling the Deck: Redistricting to Promote a Quality Education in Virginia, 89 Va. L. Rev. 773, 808–13 (2003). ↑

  158. See Va. Code. Ann. § 22.1-25(A)(1)–(3) (2016). ↑

  159. See Robinson, supra note 155, at 811–39 (arguing that the Court has validated resegregation in schools). ↑

  160. See, e.g., Genevieve Siegel-Hawley, Jennifer Ayscue, John Kuscera & Gary Orfield, Miles to Go: A Report on School Segregation in Virginia, 1989–2010, at v (2013)

    (

    describing increases in Virginia’s hyper-segregated schools since 1989). ↑

  161. 551 U.S. 701, 747–48 (2007). ↑

  162. Id. ↑

  163. Id. at 748 (“The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”). ↑

  164. Juliana Menasce Horowitz, Ruth Igielnik & Rakesh Kochhar, Pew Rsch. Ctr., Most Americans Say There Is Too Much Economic Inequality in the U.S., but Fewer than Half Call It a Top Priority 19–22 (2020), https://www.pewsocialtrends.org/2020/01/09/trends-in-income-and-wealth-inequality/ [https://perma.cc/BGG6-DPM8]. ↑

  165. Duncombe & Cassidy, supra note 13, at 1. ↑

  166. Id. This does not account for Black children who are relegated to lower-tracked classrooms or face other intra-school segregation. See Karolyn Tyson, Tracking, Segregation, and the Opportunity Gap: What We Know and Why It Matters, in Closing the Opportunity Gap: What America Must Do to Give Every Child an Even Chance

    170, 180 (

    Prudence L. Carter & Kevin G. Welner eds

    ., 2013).

    ↑

  167. Audra D.S. Burch, James Monroe Enslaved Hundreds. Their Descendants Still Live Next Door., N.Y. Times (July 7, 2019), https://www.nytimes.com/2019/07/07/us/politics/monroe-slavery-highland.html [https://perma.cc/LZ6R-KYHL]. ↑

  168. Household Income in Virginia, Statistical Atlas, https://statisticalatlas.com/state/Virginia/Household-Income [https://perma.cc/VY6A-ABBS] (last visited June 1, 2020) (showing that Black families in Virginia are twice as likely as the general population to be represented in the lowest three income brackets). ↑

  169. Food Rsch. & Action Ctr., Poverty, Hunger, Health, and the Federal Nutrition Programs: A Profile of the Southern Region 13–14 (2020), https://frac.org/wp-content/uploads/FRAC-Poverty-Hunger-Health-and-the-Federal-Nutrition-Programs-2020.pdf [https://perma.cc/8W6U-7PKP]. ↑

  170. Kathryn Howell, RVA Eviction Lab, Eviction and Educational Instability in Richmond, Virginia 3 (2020), https://rampages.us/rvaevictionlab/wp-content/uploads/sites/33937/2020/02/RVAEL_Eviction-and-Educational-Instability-in-Richmond.pdf [https://perma.cc/EU4J-Z7BP] (showing significantly higher eviction rates in school districts with large Black student populations). ↑

  171. Food Rsch. & Action Ctr., supra note 168, at 16–18. ↑

  172. Dep’t of State Police

    ,

    Crime in Virginia

    2019,

    at

     

    54 (2020), https://www.vsp.virginia.gov/downloads/Crime_in_Virginia/Crime_In_Virginia_2019.pdf [https://perma.cc/4TAJ-UHUA] (finding that 45% of violent crimes with known victims in Virginia in 2019 had Black victims, while Black Virginian’s only make up 20% of the Virginia population); Vera Inst., Incarceration Trends in Virginia 1 (2019), https://www.vera.org/downloads/pdfdownloads/state-incarceration-trends-virginia.pdf [https://perma.cc/VWX9-LSGD]. ↑

  173. In 2019, Blacks—who make up only 20% of the Virginia population—made up 42% of all arrests. Dep’t of State Police, supra note 171, at

     

    70–71. Additionally, they represent over half of Virginia’s prison population. Vera Inst., supra note 171, at 1. ↑

  174. Prosperity Now Scorecard, State Outcome & Policy Report: Virginia 4 (2021), https://scorecard.prosperitynow.org/data-by-location#state/va [https://perma.cc/AE77-ZQRK] (last visited Sept. 20, 2020) (select “download state outcome & policy report,” then search “Virginia” in the state field, and select “download PDF”) (showing that while 72% of white families in Virginia own homes, fewer than half of Black families own homes); see also Ta-Nehisi Coates, The Case for Reparations, Atlantic (June 2014), https://www.theatlantic.com/magazine/archive/2014/06/the-case-for-reparations/361631/ [https://perma.cc/76HH-BJ2J] (describing historic attempts to deprive Black families of property). ↑

  175. Va. Dep’t of Hous. and Cmty. Dev., Analysis of Impediments to Fair Housing Choice in the Commonwealth of Virginia

    36

    (2018), https://www.dhcd.virginia.gov/sites/default/files/Docx/consolidated-plan/analysis-of-the-impediments-to-fair-housing.pdf [https://perma.cc/XE39-CB8J]. ↑

  176. Benjamin F. Teresa, RVA Eviction Lab, The Geography of Eviction in Richmond: Beyond Poverty (2020), https://rampages.us/rvaevictionlab/wp-content/uploads/sites/33937/2020/02/RVAEL_Geographies-of-Eviction.pdf [https://perma.cc/G5TF-K7QT]. ↑

  177. See Achievement Gaps Dashboard, supra note 12 (comparing Black eligible students in Virginia with white eligible students). ↑

  178. Id. ↑

  179. Virginia Early Childhood Foundation found, for example, that Black students who showed up to school kindergarten-ready fell behind significantly faster than their white or Asian peers. By third grade, the number of Black children from the same cohort not meeting literacy benchmarks had more than doubled. Va. Early Childhood Found., Virginia’s Biennial School Readiness Report Card 6 (2018), https://www.vecf.org/wp-content/plugins/pdf-viewer/stable/web/viewer.html?file=https://www.vecf.org/wp-content/uploads/2018/10/VECF2018BiennialSchoolReadinessReport.pdf [https://perma.cc/AZ48-TTAS]. ↑

  180. Class of 2020 Diplomas and Completion, Va. Dep’t of Educ. Sch. Quality Profiles, https://schoolquality.virginia.gov/virginia-state-quality-profile#desktopTabs-4 [https://perma.cc/YEL2-TGR8] (last visited Sept. 1, 2020). ↑

  181. College Board, SAT Suite of Assessments Annual Report: Virginia

    3, 8, 13

    (2019), https://reports.collegeboard.org/pdf/2019-virginia-sat-suite-assessments-annual-report.pdf [https://perma.cc/K927-KKYA]; The ACT, The Condition of College & Career Readiness 2019, Virginia Key Findings 7 (2019), http://www.act.org/content/dam/act/unsecured/documents/‌cccr-2019/Virginia-CCCR-2019.pdf [https://perma.cc/A6DN-7ZKY]. ↑

  182. Statistical Atlas, supra note 167 (showing Blacks twice as likely as the general population to be represented in the lowest three income brackets). ↑

  183. This Note does not discuss the 1960s federal immigration laws, mostly because Virginia’s Hispanic population remains quite small today, and most immigrants to the state of other races are fairly well-off (Virginia’s Asian population is one of the wealthiest groups in the country). Demographic and Economic Profiles of Hispanics by State and County, 2014: Virginia, Pew Rsch. Ctr., https://www.pewresearch.org/hispanic/states/state/va [https://perma.cc/JK4K-5D9S] (last visited Mar. 14, 2021); Zinie Chen Sampson, Virginia’s Asian Population Grows, Free Lance-Star (May 28, 2011), https://fredericksburg.com/local/virginias-asian-population-grows/article_ae0fc9e6-8af4-5dec-a7c7-35257f4a0f30.html [https://perma.cc/DR33-3MCE]. However, many of the disparities noted above are also true for the small but growing Hispanic community in Virginia, which has been hit especially hard by Coronavirus. Mechelle Hankerson, ‘My Community Doesn’t Have a Voice’: Are Virginia Schools Meeting the Needs of an Increasing Hispanic Population?, Va. Mercury (Sept. 16, 2019), https://www.virginiamercury.com/2019/09/16/my-community-doesnt-have-a-voice-are-virginia-schools-meeting-the-needs-of-an-increasing-hispanic-population/ [https://perma.cc/D5BH-3SDR]; Kate Masters, Latinos Shoulder a Disproportionate Share of COVID-19 Cases. Advocates Want More Representation in Contact Tracing., Va. Mercury (June 26, 2020), https://www.virginiamercury.com/2020/06/26/latinos-shoulder-a-disproportionate-share-of-covid-19-cases-advocates-wants-more-representation-in-contact-tracing/ [https://perma.cc/G33E-H8PB]. ↑

  184. Southwestern Virginia has been hit particularly hard by the opioid epidemic but also faces other economic and healthcare struggles. For an excellent read on the region, see generally Beth Macy, Dopesick: Dealers, Doctors, and the Drug Company that Addicted America (2018). ↑

  185. Robinson v. Cahill, 303 A.2d 273, 291 (N.J. 1973) (citing N.J. Const. of 1844, art. IV, § 7 (1875)). ↑

  186. State Profiles: New Jersey, Educ. L. Ctr., https://edlawcenter.org/states/newjersey.html [https://perma.cc/8FF5-G72R] (last visited Sept. 1, 2020). ↑

  187. See, e.g., Borough of Neptune City v. Borough of Avon by the Sea, 294 A.2d 47, 51, 56 (N.J. 1972) (holding that municipalities may not charge for beach use, due to the public trust doctrine); S. Burlington Cty. NAACP v. Twp. of Mount Laurel, 336 A.2d 713, 724–25 (N.J. 1975) (holding that municipalities cannot use zoning laws to prohibit affordable housing for middle- and low-income residents); State v. Shack, 277 A.2d 369, 372–75 (N.J. 1971) (holding that migrant workers can have access to necessary services despite traditional property law rules). ↑

  188. J. Peter Byrne, Are Suburbs Unconstitutional?, 85 Geo. L.J. 2265, 2274 (1997) (reviewing Charles M. Haar, Suburbs Under Siege: Race, Space, and Audacious Judges (1996) and David L. Kirp, John P. Dwyer & Larry A. Rosenthal, Our Town: Race, Housing, and the Soul of Suburbia (1995)). ↑

  189. N.J. Const

    .

    art. VI; id. at art. XI, § IV (describing the new court’s structure and transition plan). ↑

  190. Id. at art. VI, § VII. ↑

  191. Byrne, supra note 187, at 2274. ↑

  192. Arthur T. Vanderbilt, Law Library: American Law and Legal Information, https://law.jrank.org/pages/11066/Vanderbilt-Arthur-T.html [https://perma.cc/Q3LC-798C] (last visited July 5, 2021). ↑

  193. Id. See, e.g., Winberry v. Salisbury, 74 A.2d 406, 414 (N.J. 1950) (holding, in an opinion by Chief Justice Vanderbilt, that the New Jersey Constitution gives power to the courts, not the legislature, to decide rules affecting procedure in the state’s courts). ↑

  194. Many first-year law students will remember reading State v. Shack in their property class. The case is an example of the court’s innovative take on property law. See State v. Shack, 277 A.2d 369, 372–75 (N.J. 1971). ↑

  195. Byrne, supra note 187, at 2274. ↑

  196. Id. ↑

  197. Id. See Educ. L. Ctr., supra note 185. ↑

  198. Bruce D. Baker & Sean P. Corcoran, Ctr. for Am. Progress, The Stealth Inequities of School Funding: How State and Local School Finance Systems Perpetuate Inequitable Student Spending 5 (2012) [hereinafter CAP Report]; see also Baker et al., supra note 11, at 11 (showing New Jersey ranking among the top states in funding distribution in 2015 and Virginia ranking among the lowest); Ryan, supra note 95, at 160 (describing high-poverty schools in New Jersey as “generously funded” due to “school finance litigation”). ↑

  199. Baker et al., supra note 11, at 16–17; see also CAP Report, supra note 197, at 5 (displaying New Jersey’s school funding system from 2007 to 2009). ↑

  200. Baker et al., supra note 11, at 11. ↑

  201. New Jersey is probably recently famous for the debacle of education reform in Newark Schools, in which millions of dollars were raised, but the classrooms never saw the money. See Dale Russakoff, Schooled, New Yorker (May 12, 2014), https://www.newyorker.com/magazine/2014/05/19/schooled [https://perma.cc/5TST-B7KM]. ↑

  202. Race and Ethnic Achievement Gaps, Stan. Ctr. for Educ. Pol’y Analysis, https://cepa.stanford.edu/educational-opportunity-monitoring-project/achievement-gaps/race/ [https://perma.cc/R3CH-WG2C] (last visited June 2, 2020). ↑

  203. U.S. Dep’t of Educ., School Composition and the Black-White Achievement Gap 24 (2015), https://nces.ed.gov/nationsreportcard/subject/studies/pdf/school_composition_and_‌the_bw_achievement_gap_2015.pdf [https://perma.cc/DM6C-MCMZ] [hereinafter School Composition]. ↑

  204. Like Virginia, New Jersey has some of the best-ranked public schools in the nation. See, e.g., U.S. News Best High Schools Rankings, U.S. News & World Rep., https://www.usnews.com/education/best-high-schools/rankings-overview (last visited Mar. 20, 2020) (listing a school in Northern Virginia as the best public high school in the nation). ↑

  205. State Performance Compared to the Nation, Nation’s Rep. Card, https://www.nationsreportcard.gov/profiles/stateprofile?chort=1&sub=MAT&sj=AL&sfj=NP&st=MN&year=2019R3 [https://perma.cc/JH8Y-SXAG] (last visited June 9, 2021) (choose “Grade 4,” toggle between “Mathematics” and “Reading,” and select “Average scale scores” and “2019”). ↑

  206. N.J. Const. art. VIII, § IV. ↑

  207. Id. ↑

  208. Ryan, supra note 95, at 146. ↑

  209. Baker et al., supra note 11, at 10–11, 16, 17. ↑

  210. Stan. Ctr. for Educ. Pol’y Analysis, supra note 201. ↑

  211. Fourth-grade reading ranks third in the nation, and fourth-grade math ranks seventh. In eighth grade, rankings drop slightly. Nation’s Rep. Card, supra note 204. ↑

  212. Wyo. Const. art. VII, § 8. ↑

  213. Id. at art. VII, § 1. ↑

  214. Id. at art. VII, § 10. Wyoming is known as the ‘equality state’ because it was the first state to grant women suffrage, and did so from its inception. Id. at art. VI, § 1. ↑

  215. Id. at art. VII, § 14. ↑

  216. Id. at art. VII, § 11. ↑

  217. 606 P.2d 310, 314, 320 (Wyo. 1980). ↑

  218. Id. at 314–15. ↑

  219. Id. at 315 n.3. ↑

  220. Campbell Cty. Sch. Dist. v. State, 907 P.2d 1238, 1246–47 (Wyo. 1995). ↑

  221. Id. at 1238, 1247–48. ↑

  222. Id. at 1249–50. ↑

  223. Id. at 1279–80. ↑

  224. Scott v. Commonwealth, 443 S.E.2d 138, 142 (Va. 1994). Scott occurred just one year before Campbell County. The difference in the level of analysis and detail in the opinions is remarkable. ↑

  225. Campbell Cty. Sch. Dist., 907 P.2d at 1279. ↑

  226. Virginia has a population of over 8 million, while Wyoming’s population has yet to cross 600,000. Race and Ethnicity in Wyoming, Statistical Atlas, https://statisticalatlas.com/state/Wyoming/Race-and-Ethnicity [https://perma.cc/4VW8-UFJW] (last visited June 5, 2020); see Population of Wyoming, Stat. Atlas, https://statisticalatlas.com/state/Wyoming/Population [https://perma.cc/6W7D-XC9E] (last visited June 5, 2020). ↑

  227. Race and Ethnicity in Wyoming, Stat. Atlas, https://statisticalatlas.com/state/Wyoming/Race-and-Ethnicity [https://perma.cc/4VW8-UFJW] (last visited June 5, 2020); see Population of Wyoming, Statistical Atlas, https://statisticalatlas.com/state/Wyoming/Population [https://perma.cc/6W7D-XC9E] (last visited June 5, 2020). ↑

  228. U.S. Dep’t of Educ., supra note 202, at 23 n.21, 24–25. ↑

  229. See supra note 213 and accompanying text. ↑

  230. Wyoming did not become a state until 1890, after slavery was outlawed in the United States. The state constitution began with statements of racial equality. See Wyo. Const. art. I, § 2. This is not to say that Wyoming avoided all discrimination, but rather, it was never as entrenched as was the case in Virginia. See, e.g., Kim Ibach & William Howard Moore, The Emerging Civil Rights Movement: The 1957 Wyoming Public Accommodations Statute as a Case Study, 73 Annals of Wyo. 2, 3 (2001). ↑

  231. One of the biggest advocates for education funding in Virginia is rural Republican State Senator Bill Stanley, who has recognized that there are striking similarities in the needs of rural and urban school districts. Amy Friedenberger, ‘Facing a Dire Need’ for Funding for School Construction, Virginia Lawmakers Pitch Proposals, Roanoke Times (Jan. 18, 2020), https://www.roanoke.com/news/education/facing-a-dire-need-for-funding-for-school-construction-virginia-lawmakers-pitch-proposals/article_fdcfc9ef-54a9-5d7d-b780-b87a44d8a0fa.html [https://perma.cc/6GYC-T3TM]; see also Macy, supra note 183 (describing life in rural Virginia). ↑

  232. Sabrina Tavernise & Robert Gebeloff, How Voters Turned Virginia from Deep Red to Solid Blue, N.Y. Times (Nov. 9, 2019), https://www.nytimes.com/2019/11/09/us/virginia-elections-democrats-republicans.html [https://perma.cc/X8Q6-LXNK]. ↑

  233. See, e.g., Wyoming Education Ranked 6th in Nation by the National Education Quality Report,

    KULR8

    News (Sept. 5, 2019), https://www.kulr8.com/news/wyoming-education-ranked-th-in-nation-by-the-national-education/article_e2dcc056-d036-11e9-a031-9f508f484af7.html [https://perma.cc/2WMW-4BBF] (quoting State Superintendent of Public Instruction Jillian Balow). ↑

  234. See supra Section III.B. ↑

  235. See supra notes 111–115 and accompanying text. ↑

  236. See supra notes 216–232 and accompanying text. ↑

  237. See supra notes 211–212 and accompanying text. ↑

  238. See supra Part II. ↑

  239. Richmond’s private school attendance rate, around 30%, is significantly higher than the national average. Libby Germer, A Public History of Public Housing: Richmond, Virginia, Yale Nat’l Initiative to Strengthen Teaching in Pub. Schs. (last visited Sept. 23, 2020), https://teachers.yale.edu/curriculum/viewer/initiative_15.03.05_u [https://perma.cc/XDQ2-HRL2]. The national average in the United States has consistently hovered around 10%. Jack Jennings, Proportion of U.S. Students in Private Schools is 10 Percent and Declining, Huffington Post (Mar. 28, 2012, 12:31 PM), https://www.huffpost.com/entry/proportion-of-us-students_b_2950948 [https://perma.cc/TZ9Z-S534]. ↑

  240. Va. Code Ann. § 22.1-25(A) (2016). See also Ciolfi, supra note 156, at 807 (suggesting the unconstitutionality of current division in lines in Virginia because they do not promote or realize the standards of quality). ↑

  241. See supra note 167 and accompanying text. ↑

  242. See supra Section III.C; Duncombe & Cassidy, supra note 13. ↑

  243. See supra Part I. ↑

  244. See supra Part II. ↑

  245. See supra Part III. ↑

  246. See supra Part IV. ↑

  247. In fact, it is unclear if those in the middle are doing particularly well. While federally required data highlights children below the federal poverty level as a group, it aggregates all other children together, hiding the wide disparities in outcomes between the middle and the very rich. See Daniel Markovits, The Meritocracy Trap: How America’s Foundational Myth Feeds Inequality, Dismantles the Middle Class, and Devours the Elite 124–33 (2019). We may be missing important trends in achievement and education amongst middle- and working- class children. Though school reformers may still be focused on the plight of the poor, increasing attention to the middle— and better disaggregating data—may shed light on even more concerning trends. ↑

  248. Duncombe & Cassidy, supra note 13, at 1. ↑

  249. Ryan, supra note 95, at 149–50. ↑

  250. This Note does not address charter schools because Virginia has very few, and the movement hasn’t gained much ground in the Commonwealth. Virginia’s Public Charter Schools, Va. Dep’t of Educ., https://www.doe.virginia.gov/instruction/charter_schools/‌charter_schools.shtml [https://perma.cc/4YD3-W3LZ] (last visited June 9, 2021) (listing only 8 charter schools operating in the state); Editorial, A Chance for Charter Schools To Finally Break Through in Virginia, Wash. Post (Feb. 14, 2017), https://www.washingtonpost.com/opinions/a-chance-for-charter-schools-to-finally-break-through-in-virginia/2017/02/14/82e6539e-efd6-11e6-b4ff-ac2cf509efe5_story.html [https://perma.cc/4PZG-BTBB] (discussing the political difficulties). ↑

  251. For the full debate on school governance, see Who’s in Charge Here? The Tangled Web of School Governance and Policy (Epstein ed., 2004). ↑

  252. See, e.g., CAP report, supra note 197, at 17. ↑

  253. See generally, e.g., Kimberly Jenkins Robinson, A Federal Right to Education: Fundamental Questions for Our Democracy

     

    (2019); While advocacy for increased federal help has certainly resulted in more standardized testing and more litigation, as of 2018, federal dollars made up less than 8% of school revenue. Nat’l Educ. Ass’n

    ,

    supra note 133, at 8. For the same reason that a low state share of funding results in greater inequities between districts, a low national share contributes to large inequities between state spending on students. See, e.g., Markovits, supra note 246, at 126–27. ↑

  254. I am not the first scholar to suggest this. See, e.g., Ryan, supra note 95, at 1–14. ↑

  255. See supra Part II. ↑

  256. Alisa Chang & Jonaki Mehta, Why U.S. Schools Are Still Segregated—And One Idea To Help Change That, NPR (July 7, 2020), https://www.npr.org/sections/live-updates-protests-for-racial-justice/2020/07/07/888469809/how-funding-model-preserves-racial-segregation-in-public-schools [https://perma.cc/SY6Y-KXFL]. ↑

  257. See CAP Report, supra note 197, at 1–2. ↑

  258. See, e.g., San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 14–16 (1973); Edgewood Indep. Sch. Dist. v. Kirby, 777 S.W.2d 391, 392–93 (Tex. 1989); David G. Hinojosa, Rodriguez v. San Antonio Independent School District: Forty Years and Counting, in The Enduring Legacy of Rodriguez: Creating New Pathways to Equal Educational Opportunity 24­–40 (Charles J. Ogletree, Jr. & Kimberly Jenkins Robinson eds., 2015). ↑

  259. Hinojosa, supra note 257, at 37–38. ↑

  260. Friedenberger, supra note 230; JLARC Report to the Governor and the General Assembly of Virginia, Efficiency and Effectiveness of K-12 Spending, S. Doc. No. 11 (2015). ↑

  261. Editorial, Lots of Virginia Schools are Outdated. Why That Matters., Roanoke Times (Aug. 15, 2018), https://roanoke.com/opinion/editorials/editorial-lots-of-virginia-schools-are-outdated-why-that-matters/article_cc2a3cbe-f65c-5453-86f6-22c4e846d353.html [https://perma.cc/8NV9-TS6C]; Debbie Truong, ‘Borderline Criminal’: Many Public Schools Teeter on the Edge of Decrepitude, Wash. Post (May 25, 2019, 4:55 PM), https://www.washingtonpost.com/local/education/borderline-criminal-thats-the-condition-of-decrepit-public-schools/2019/05/25/bad60064-556f-11e9-814f-e2f46684196e_story.html [https://perma.cc/9FA5-L3J2]; Brendan King & Chelsea Rarrick, Richmond Teachers Believe Moldy Classrooms are Making Them Sick, CBS 6 News Rich. (Oct. 3, 2016, 11:37 AM), https://www.wtvr.com/2016/10/02/richmond-teachers-believe-moldy-classrooms-are-making-them-sick/. ↑

  262. As of 2018, Richmond’s required construction budget hovered around 800–900 million dollars. Truong, supra note 260. The annual operating budget of Richmond city in that year was about 700 million dollars. City of Rich., Adopted Annual Fiscal Plan for Fiscal Year 2018 (2018) http://www.richmondgov.com/Budget/documents/BiennialPlans/2018_‌AdoptedAnnualFiscalPlan.pdf [https://perma.cc/M94Q-K8A5]. ↑

  263. Cf. Editorial, supra note 260 (describing analogous conditions). See also Zachary Reid, 100 Years Ago, Richmond’s Students Faced a Situation Similar to Today’s: Crumbling Facilities, Rich. Times-Dispatch (Apr. 30, 2016), https://richmond.com/news/local/100-years-ago-richmonds-students-faced-a-situation-similar-to-todays-crumbling-facilities/article_712a5f52-f50d-5bec-a09f-40221195a5be.html [https://perma.cc/M3AT-6DCK] (noting the racial disparities in crumbling school buildings). ↑

  264. Ryan, supra note 95, at 129 (“By all accounts, [the foundation amount] is unrealistically low.”); see also Salmon, supra note 7, at 155–61 (concluding that Virginia’s school funding is inadequate). ↑

  265. The Local Composite Index formula is contained in the biennial budget language. 2020 Va. Acts 153–55. Note that Virginia does have a separate budget line item called the At-Risk Add-On (created shortly after the Scott case), which provides additional funds for disadvantaged students. Va. Code Ann. § 22.1-199.1 (2020). However, it has also suffered from budgetary limitations. See, e.g. Chris Duncombe & Chad Stewart, Virginia Can Choose Equity for School Funding During Economic Crisis (2020), https://www.thecommonwealthinstitute.org/wp-content/uploads/2020/06/Virginia-Can-Choose-Equity-for-School-Funding-During-Economic-Crisis.pdf [https://perma.cc/9UEC-5MRU] (describing the un-allotment of At-Risk funds during economic downturns). ↑

  266. Ryan, supra note 95, at 157­–70; CAP Report, supra note 197, at 1–2. ↑

  267. Early Childhood Education, Ctrs. for Disease Control & Prevention (“CDC”), https://www.cdc.gov/policy/hst/hi5/earlychildhoodeducation/index.html [https://perma.cc/GE3V-QZRD] (last visited Aug. 5, 2016); Tamara Halle et al., The Research Base for a Birth Through Eight State Policy Framework Child Trends (2013), https://www.childtrends.org/wp-content/uploads/2013/12/2013-20ResearchBase.pdf [https://perma.cc/D42D-7L75]. ↑

  268. Preschool, Va. Dep’t of Educ., http://www.doe.virginia.gov/early-childhood/preschool/index.shtml [https://perma.cc/N9YB-4VWH] (last visited Sept. 2, 2020) (showing public options available for needy students; note that non-qualifying students must find private options, which range from home settings to official preschools or daycares); Allison H. Friedman-Krauss et al., The State of Preschool 2018: State Preschool Yearbook 162–63 (2019) (showing that Virginia’s public state preschool program still has limited access, ranking poorly across the board). ↑

  269. See Friedman-Krauss et al., supra note 267, at 162–63. ↑

  270. CDC, supra note 266. ↑

  271. Id.; see also Press Release, Learning Pol’y Inst., What Does the Research Really Say About Preschool Effectiveness? (Jan. 31, 2019), https://learningpolicyinstitute.org/press-release/what-does-research-really-say-about-preschool-effectiveness [https://perma.cc/JAY7-229Z] (reaffirming that children enrolled in preschool reap both short- and long-term benefits). Sarah Jane Glynn, Jane Farrell & Nancy Wu, The Importance of Preschool and Child Care for Working Mothers, Ctr. for Am. Progress (May 7, 2013), https://www.americanprogress.org/issues/education-k-12/reports/2013/05/08/62519/the-importance-of-preschool-and-child-care-for-working-mothers/ [https://perma.cc/2US8-3C3K]; Kelsey Piper, Early Childhood Education Yields Big Benefits—Just Not the Ones You Think, Vox (Oct. 16, 2018, 9:00 AM), https://www.vox.com/future-perfect/2018/10/16/17928164/early-childhood-education-doesnt-teach-kids-fund-it. ↑

  272. CDC, supra note 266. ↑

  273. David M. Quinn & Morgan Polikoff, Summer Learning Loss: What Is It, and What Can We Do About It?, Brookings (Sept. 14, 2017), https://www.brookings.edu/research/summer-learning-loss-what-is-it-and-what-can-we-do-about-it/ [https://perma.cc/4G76-MYYR]; Jaclyn Zubrzycki, Year-Round Schooling Explained, EducationWeek (Dec. 18, 2015), https://www.edweek.org/leadership/year-round-schooling-explained/2015/12 [https://perma.cc/7B9Q-FUD7]. ↑

  274. Afterschool Alliance, What Does the Research Say about Afterschool? (Nov. 2017), http://afterschoolalliance.org/documents/What_Does_the_Research_Say_About_Afterschool.pdf [https://perma.cc/G2ZU-63AB]; Benefits for Youth, Families, & Communities, Youth.Gov, https://youth.gov/youth-topics/afterschool-programs/benefits-youth-families-and-communities [https://perma.cc/X57N-CMXG] (last visited Sept. 1, 2020). ↑

  275. Piper, supra note 270 (explaining why benefits accrue more the closer a program starts to birth). ↑

  276. Editorial, Will Virginia Finally Mandate Equal Schools?, Roanoke Times (Jan. 24, 2020), https://roanoke.com/opinion/editorials/editorial-will-virginia-finally-mandate-equal-schools/article_804e788e-0606-528a-8d90-b048f3300ddc.html [https://perma.cc/6757-QFLY]. ↑

  277. Ciolfi, supra note 156, at 820; Chang & Mehta, supra note 255. ↑

  278. Tyson, supra note 165, at 169–70. ↑

  279. Kimberly A. Goyette, Danielle Farrie & Joshua Freely, This School’s Gone Downhill: Racial Change and Perceived School Quality Among Whites, 59 Soc. Probs. 155, 166–71 (2012) (describing how white parents perceive their school quality to be declining simply as a result of greater numbers of Black children attending the school, regardless of actual metrics); Chase M. Billingham & Matthew O. Hunt, School Racial Composition and Parental Choice: New Evidence on the Preferences of White Parents in the United States, 89 Soc. Educ. 99, 99 (2016) (finding that the “proportion of [B]lack students in a hypothetical school has a consistent and significant inverse association with the likelihood of white parents enrolling their children in that school”). ↑

  280. The Benefits of Socioeconomically and Racially Integrated Classrooms, Century Found. (Apr. 29, 2019), https://tcf.org/content/facts/the-benefits-of-socioeconomically-and-racially-integrated-schools-and-classrooms/. ↑

  281. Id. (finding that students in integrated classrooms are less likely to drop out, more likely to enroll in college, and on average have higher test scores). ↑

  282. Alana Semuels, The City that Believed in Desegregation, Atlantic (Mar. 27, 2015) https://www.theatlantic.com/business/archive/2015/03/the-city-that-believed-in-desegregation/388532/ [https://perma.cc/XU4N-DJ5V]; see also John Eligon, Busing Worked in Louisville. So Why Are Its Schools Becoming More Segregated?, N.Y. Times (July 28, 2019), https://www.nytimes.com/2019/07/28/us/busing-louisville-student-segregation.html [https://perma.cc/LGN7-8HE2] (noting that a Louisville school district is one of the nation’s most racially integrated). ↑

  283. John Brittain, Larkin Willis & Peter W. Cookson Jr., Sharing the Wealth: How Regional Finance and Desegregation Plans Can Enhance Educational Equity, (2019), https://learningpolicyinstitute.org/sites/default/files/product-files/Sharing_The_Wealth_REPORT.pdf [https://perma.cc/86NL-6LVJ]. ↑

  284. Id. ↑

  285. Ryan, supra note 95, at 112–14. ↑

  286. See, e.g., id. at 112. ↑

  287. Id. at 113 (describing a stump speech by President Reagan against busing and comprehensive integration in schools where the “crowd greeted these statements with silence” and the local paper called integration the district’s “proudest achievement”). ↑

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