It has been suggested by Barack Obama, political pundits, and recent questions and comments on this stack, that the Citizens United decision made it possible for foreign nationals to donate to political campaigns.
Is it possible for foreign nationals to contribute to electoral campaigns, with money funneled through corporations, with the Citizens United ruling? If it is not permitted, what legal measures prevent them from doing so?
No, Foreign nationals can't secretly contribute financially to electoral campaigns, under the guise of being in corporations, because of Citizens United.
The law impacted by Citizens United was USC Title 2, Section 441b, which prohibited for profit corporations, labor unions, and other associations from contributing. This section specifically was found to violate the rights of free speech, as protected by the First Amendment, for a collection of individuals gathered via contractual agreement.
Beyond 441b, USC Title 2, Section 441, Subsection E, prohibits foreign nationals from contributing to political campaigns. This section wasn't addressed by the Citizens United ruling. “A foreign national” is defined to include any “partnership, association, corporation, organization, or other combination of persons organized under the laws of, or having its principal place of business in, a foreign country.” Even further, the scope of those considered "Foreign nationals" includes non-resident aliens. Even if they located their business in the US, unless they became US citizens they would be subject to the restrictions of FEC regulation 11 CFR 110.20(i), stating:
A foreign national shall not direct, dictate, control, or directly or indirectly participate in the decision making process of any person, such as a corporation, labor organization, political committee, or poltiical organization with regard to such person’s Federal or non-Federal election-related activities, such as decisions concerning the making of contributions, donations, expenditures, or disbursements in connection with elections for any Federal, State, or local office or decisions concerning the administration of a political committee.
Another point, outlined in FEC's outline of restrictions on foreign nationals, is that a US subsidiary of a foreign corporation can engage political activity provided it is not directed or financed by the foreign parent entity.
A domestic subsidiary of a foreign corporation (or a domestic corporation owned by foreign nationals) may make donations and disbursements in connection with state or local elections (if permissible under state and local law) provided that:
- These activities are not financed in any part by the foreign parent or owner; and
- Individual foreign nationals are not involved in any way in the making of donations to nonfederal candidates and committees.
Which is carefully enough crafted that it doesn't restrict political activity of domestic entities while not allowing political influence by foreign entities.
There is some ambiguity in the word "possible". Citizens United certainly did not make it legal for foreign nationals to contribute to political campaigns. The main finding of CU was that corporations and unions can assert free speech rights of natural persons. That is, it found that the First Amendment cannot be ignored simply because it is being applied to a group of people, rather than an individual person. It outlawed differing treatment in this area based on whether a party is a natural person, but it did not overrule previous law on distinguishing on the basis on nationality.
Is it possible for foreign nationals to so contribute? Certainly, and it was possible before CU. For instance, a foreign national could give money to a US citizen, and have them give it to a campaign and claim it was from them (the US citizen). That would be possible, but wildly illegal.
Another issue that should be addressed is the term "political campaign". The law that was challenged in Citizens United v. FCC was a general prohibition against corporations and unions from engaging in spending that affects an election. The group Citizens United wanted to air a movie critical of Hillary Clinton. This was considered a "political contribution" and thus prohibited, and this ruling was challenged in the CU court case. Citizens United was not giving any money to a political candidate, they were merely engaging in speech that could affect an election. CU found that laws against such independent expenditures are unconstitutional. It did not affect laws regarding giving money to candidates, or spending that is coordinated with a candidate. If the term "political campaign" is understood to mean a campaign by a candidate, then CU did not affect the legality of anyone, foreign or domestic, individual or corporation, to donate to a political campaign.
