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

*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.Show More

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). ↑