Contextualizing Corruption: Foreign Financing Bans and Campaign Finance Law

Introduction

The ease of moving information and money across borders has raised alarm about the growing risk of foreign interference in domestic elections. This issue burst into the spotlight in the United States in the aftermath of the 2016 presidential election, but subsequent events have demonstrated that the phenomenon is far from abating. In March 2021, the National Intelligence Council released an unclassified version of a report finding that both Russia and Iran engaged in extensive efforts to influence the 2020 presidential election, mainly by spreading misleading and false allegations about Joe Biden.1 Russian actors also were deeply involved in pushing inflammatory narratives after the election, including amplifying material about election fraud and promoting “stop the steal” hashtags on social media.2Id. at 4–5. Iranian actors went even further, funding the creation of a website promoting death threats against U.S. election officials.3Id. at 5–6. The Department of Homeland Security warned of similar activities in connection with the fall 2022 midterm elections.4

The reach of activities like these is extraordinary. According to one report, foreign disinformation campaigns on Facebook reached almost half of all Americans in the run-up to the 2020 election.5 But efforts to effectively regulate them raise a host of practical and legal issues. As a practical matter, policing the spread of disinformation on social media is extraordinarily difficult, even for the technology companies hosting the most popular platforms. This is especially true when false narratives are adopted and spread by regular Americans unaware of or indifferent to the fact that they are disseminating foreign-funded propaganda. As a legal matter, the First Amendment puts formidable barriers in the path of governmental efforts to contain the distribution of political information or to limit the perspectives to which American voters are exposed.6

But there are some things that can, and should, be done. This Article addresses one: the prohibition on independent expenditures funded by foreign nationals. Current federal law prohibits foreign nationals (excluding permanent residents) from funding independent express expenditures.7 Bluman v. FEC, a decision of the U.S. District Court for the District of Columbia, authored by then-Judge Brett Kavanaugh, upheld this prohibition by relying on cases excluding foreign nationals from participating in acts of democratic self-governance.8 The Supreme Court summarily affirmed Bluman.9Bluman, 565 U.S. 1104. The decision, however, sits on shaky foundations. It relies on a series of “political community” cases, which are themselves remnants of an earlier, more xenophobic age.10Bluman, 800 F. Supp. 2d at 286. As many commentators have noted, Bluman also is in significant tension with the sweeping condemnation of speaker-based distinctions announced by the Supreme Court in Citizens United v. FEC.11 Finally, the decision runs seriously afoul of the current Court’s general refusal to accept as legitimate (much less compelling) any state interest in regulating campaign speech on the basis of its effect on voters rather than on candidates.

Despite these weaknesses, I argue in this Article that Bluman was correctly decided, albeit for reasons different than those relied on by the district court. The reason foreign nationals can be prohibited from engaging in independent express advocacy is not that non-nationals cannot ever be part of the U.S. political community or generally lack First Amendment protection for their speech, or because of fears that the speech of non-nationals will somehow inappropriately influence the votes of American citizens. Instead, the compelling state interest supporting the prohibition is the same candidate-based corruption rationale underlying all campaign finance regulations upheld by the current Court: independent expenditures by foreign nationals can be limited because they pose a risk of corrupting public officeholders. They do so by creating incentives to pressure and reward foreign actors who spend on a candidate’s behalf in a context—foreign and international affairs—which is uniquely difficult for courts, Congress, and the public to otherwise police. Unlike other independent expenditures, which the Court has said pose little risk of quid pro quo corruption or the appearance thereof,12 independent expenditures by foreign actors pose exactly that risk. Bans on foreign-funded expenditures are a sufficiently tailored way—and may well be the only way—to tackle the particular problem they present.

This conclusion is well supported by current First Amendment doctrine. For more than 100 years, the Supreme Court has upheld restrictions on the ability of certain categories of people to engage in various types of political activity on the grounds that their engagement creates an unacceptably high risk of political corruption or the appearance thereof. This rationale, which rests firmly on the traditional grounds of preventing conduct that corrupts public officials rather than voters, was accepted by the Supreme Court as early as 1882 in Ex parte Curtis13106 U.S. 371 (1882). as a constitutionally sufficient reason to uphold prohibitions on the political activity of federal employees. It was reiterated by the Court in 1947 in United Public Workers of America v. Mitchell14 and again in 1973 in United States Civil Service Commission v. National Ass’n of Letter Carriers.15 More recently, the Supreme Court used similar reasoning to impose a constitutional requirement on judges to recuse themselves in cases involving entities engaged in large spending campaigns on their behalf.16

In these and other cases, the Court has plainly grasped the pertinent point: the risk of constitutionally salient corruption is contextually situated—it depends on the specific institutional relationship between the public official and the political speaker whose activity is being constrained. When this contextual situationality is recognized and taken into account, we can see clearly how the weight of the government’s compelling interest in preventing corruption differs, depending on the contextual relationship between the public official and the restricted class of speakers. When that relationship poses a risk of corrupting the public officeholders’ use of public power, the government has a well-established compelling interest in preventing that risk by imposing restrictions based on the identity of the speaker.

With this framework firmly in place, we are able to see the government’s interest in preventing foreign financing of political activities more clearly. The Court has never held that independent expenditures do not in fact generate feelings of indebtedness and gratitude on the part of officeholders. Indeed, the current Court has leaned into that fact, arguing that the responsiveness of elected officials to donors is a healthy part of democratic self-governance.17See infra Section II.A.2. But there is no theory of democratic self-governance suggesting that elected officials should be similarly responsive to the wishes of foreign financiers. Thus, the current prohibition on the limitation of independent expenditures by domestic entities is readily distinguished from the type of foreign funding ban at issue in Bluman.18 Additionally, executive privilege, judicial deference to the political branches in areas of foreign affairs, the sensitivity of foreign relations, the difficulty of untangling the underlying relationships between foreign nationals and their governments, and the scope of potential harm in getting it wrong all justify a broadly prophylactic approach.

This Article proceeds in three Parts. Part I explains the history of foreign financing bans and their uncomfortable fit with the rest of U.S. campaign finance law. Part II contextualizes the Court’s understanding of corruption by deconstructing current doctrine and looking more closely at how the Court has, in fact, understood corruption in context, both in the past and in current law, and then applying a similarly contextualized approach to foreign funding bans. Part III demonstrates the close connection between the corruption risk posed by foreign financing of election activities and issues of national security, illustrating why judicial deference to congressional judgment is appropriate here. The Article concludes by summarizing the current Court’s acceptance of contextually situated corruption and the importance of taking such an approach when evaluating the constitutionality of foreign financing bans.

Preventing foreign nationals from funding independent express expenditures will not solve all of the woes facing the U.S. electoral system. It is nonetheless an important prohibition to defend. Our founders were deeply concerned about foreign influence over U.S. lawmakers and went to extensive lengths to prevent it from taking root. Statutes like that at issue in Bluman are the current incarnation of these long-standing efforts and should continue to be upheld against First Amendment challenges.

I. The Apparent Unconstitutionality of Foreign Financing Bans

Current foreign financing bans have their origins in three federal laws: the Foreign Agents Registration Act (FARA), Federal Election Campaign Act (FECA), and Bipartisan Campaign Reform Act (BCRA). Each of these laws was enacted by Congress in the wake of scandals involving elected officials’ entanglements with foreign actors. This Part sets out that history and explains how these three statutes continue to structure our current prohibitions on foreign financing of domestic elections. It then outlines the current state of campaign finance law and explains the uneasy fit between that law and the district court’s opinion in Bluman.

A. The Origins of Foreign Financing Bans

1. Foreign Agents Registration Act

Restrictions on foreign involvement in domestic elections have been part of U.S. law since 1938, when Congress enacted FARA.19 As originally enacted, FARA was not primarily a campaign finance law. Rather, it required agents of foreign principals who engaged in “political activities” within the United States to register with the Attorney General and “disclose their connections with foreign governments, foreign political parties and other foreign principals.”20Am. L. Div., supra note 19, at 5–6. “Agent” is defined in the statute as “any person who acts . . . under the direction or control of a foreign principal, either directly or indirectly.”21Id. at 6. The term “political activities” is defined as any

activity which the person [(i.e., agent)] engaging therein believes will, or which he intends to, prevail upon, indoctrinate, convert, induce, persuade, or in any other way influence any agency or official of the Government of the United States or any section of the public within the United States with reference to formulating, adopting, or changing the domestic or foreign policies of the United States or with reference to the political or public interests, policies, or relations of a government of a foreign country or a foreign political party.22Id. at 37.

Since 1942, a registered agent distributing “political propaganda” must also disclose that activity and label the distributed material as such.23Id. at 9–10.

The 1938 law came about amid concerns regarding Nazi agents operating in the United States prior to America’s entry into World War II.24 The congressional committee considering the legislation reported that its investigation had turned up “extensive evidence of Nazi . . . efforts to influence American public opinion . . . . ‘to foster un-American activities, and to influence the external and internal policies of this country.’”25 The purpose of the Act, according to the Congressional Research Service, was to

protect the national defense, internal security, and foreign relations of the United States by requiring public disclosure by persons engaging in propaganda activities and other activities for or on behalf of foreign governments, foreign political parties, and other foreign principals so that the Government and the people of the United States may be informed of the identity of such persons and may appraise their statements and actions in the light of their associations and activities.26

As originally enacted, then, FARA was concerned about the effect of foreign campaign spending on American voters.

That changed when the law was amended in 1966, this time specifically in response to concerns about foreign interference in domestic elections. The issue in 1966 was not propaganda pitched to voters, but contributions made to candidates. An investigation by the U.S. Senate Foreign Relations Committee revealed that campaign contributions had been channeled to congressional candidates by Philippine sugar industry magnates and other foreign interests.27 Senator J.W. Fulbright, chair of the committee, expressed concern that agents of foreign principals had shifted their efforts to influence U.S. policy away from subversive activities to lobbying and financing election campaigns.28Am. L. Div., supra note 19, at 12–13. The 1966 amendments addressed this concern in two ways. First, in an effort to destigmatize registration by bona fide foreign lobbying interests, the amendments made it easier to register and enhanced transparency of lobbying efforts.29Id. at 13. Second, and more pertinently for our purposes, the amended law for the first time codified the prohibition on giving or receiving political contributions from foreign financiers.30See id. at 89–90. Specifically, the new law prohibited an agent of a foreign principal from directly, or through or on behalf of another person, making a contribution of money or any other “thing of value” in connection with an election to political office.31 The amendments likewise made it a criminal offense to “knowingly solicit, accept, or receive any such a contribution.”32Am. L. Div., supra note 19, at 130.

2. Federal Elections Campaign Act

The next significant restrictions on foreign financing of U.S. election activity came in the wake of the Watergate scandal. The Watergate scandal is known today primarily for the break-in at the Democratic National Committee (DNC) headquarters, housed in the Watergate Hotel in Washington, D.C., which triggered the series of events leading to the resignation of President Richard M. Nixon.33 But Watergate was also a campaign financing scandal. The men arrested in the break-in were carrying thousands of dollars in cash, which was quickly tied to a “slush fund” held by Nixon’s campaign committee (the Committee to Re-elect the President). The slush fund appeared to have been financed through undisclosed campaign contributions and laundered through a Mexican bank. These revelations triggered concerns about the origin of the contributions, calling for a deeper investigation into the finances of the Nixon campaign.34

In response, the Senate unanimously voted to form a bipartisan Select Committee on Presidential Campaign Activities (Watergate Committee) to investigate the accusations.35 At the time, federal law required candidates for federal office to disclose most campaign contributions.36See id. at 108–09. But an awkward interaction between the applicability of an older law (the Federal Corrupt Practices Act)37 and the more recently enacted 1971 version of FECA allowed Nixon’s fundraisers to plausibly tell donors that contributions received between February and April of 1972 would not be disclosed publicly, if at all.38See Emery, supra note 35, at 109–10. Nixon’s committee had taken full advantage of this, raising but not disclosing more than eleven million dollars during those months.39 Most of these donations were very large, and many were tied to foreign nationals.40 The origin of others was unclear, in part because they were routed through intermediaries.41Id.

These revelations, with others, led Congress to substantially amend FECA, creating the version of the statute that continues to structure campaign finance law today.42See id. at 87–90. As amended, FECA now prohibits foreign nationals from making any contribution or expenditure, directly or through another person, “in connection with” an election to state or federal office.43See 52 U.S.C. § 30121(a). It also prohibits candidates from soliciting or accepting such contributions44Id. and clarifies that the prohibition applies not just to agents of foreign principals (through FARA) but also to the foreign principals themselves. Finally, the amended law prohibits all foreign spending in relation to election campaigns, not just that over $1,000 as the original legislation had done.45

3. Bipartisan Campaign Reform Act

The prohibition against foreign financing of domestic election activity was strengthened again through the enactment of BCRA in 2002. Once again, a major motivation for the law was concern that elected officials were accepting inappropriate campaign assistance from foreign financiers. This time, the scandal involved President Bill Clinton’s 1996 re-election campaign. Like Nixon two decades earlier, Clinton’s re-election team took advantage of a perceived loophole in then-existing campaign finance laws to solicit and accept large amounts of so-called “soft-money,” including from foreign nationals—most notably, individuals connected with China.46

Soft money was an unintentional creation of the Supreme Court. As enacted, FECA regulated the spending of all political actors: political parties, candidates for federal office, and nonparty/noncandidates (third parties) were all regulated under the law.47 The regulation of third-party spenders was particularly strict. FECA prohibited such entities from spending more than $1,000 on expenditures “relative to a clearly identified candidate.”48 The point of this was to prevent third-party expenditures from becoming a vehicle to circumvent the spending and contribution limits imposed on candidates and parties.49Id. at 46–47. Allowing third parties to spend unlimited funds on political advertising would, Congress believed, have the same corrupting effect on candidates as permitting large contributions made directly to candidates, even if the third-party spending was done independently.50Id. at 45–51. The effect of this Act, however, was to prohibit entities not affiliated with parties or candidates from engaging in virtually any campaign spending at all.51Id. at 46–47.

As discussed below, expenditure caps, including those imposed on third-party spenders, were invalidated by the Supreme Court in Buckley v. Valeo.52Id. at 58–59. But FECA also imposed broad disclosure requirements, including on third-party spenders.53See id. at 60–82. So, the Buckley Court had to address the constitutionality of these requirements. The Court’s concern was that the disclosure provision was too sweeping. Much of the speech captured by the statutory definition, the Court worried, would be pure “issue advocacy”—the discussion of issues of public policy that must be robust and uninhibited in a democracy.54 To solve this perceived problem, the Court imposed a limiting construction on the provision. The speech of third-party spenders—everyone other than parties, candidates, and political action committees—could only be regulated when it constituted what came to be known as “express advocacy.”55Id. at 44–45. Express advocacy was defined (in a footnote) as messages including terms “such as ‘vote for,’ ‘elect,’ ‘support,’ . . . ‘vote against,’ ‘defeat,’ [and] ‘reject.’”56 This newly defined category of express advocacy was subject to disclosure, but independent third-party spending that was not such advocacy (issue advocacy) was not.

It is this distinction that spawned the soft money “loophole” weaponized by Clinton. Working with the DNC, the Clinton campaign decided that money spent on issue advocacy, as opposed to express advocacy, was not subject to contribution caps and could be raised and spent in unlimited amounts, which is exactly what the campaign did.57 BCRA was enacted in part to close this gap. It had two major provisions. Title I prohibited candidates and political parties from soliciting or accepting soft money from anyone, including foreign nationals. Title II amended FECA and FARA to extend the prohibitions on foreign financing already in those statutes to more election activities.58 Specifically, it prohibited foreign nationals from making any “expenditure, independent expenditure, or disbursement for an electioneering communication.”59 “Electioneering communications” was defined in BCRA as those involving a clearly identified candidate and broadcast in the relevant media market within certain limited time frames preceding primary or general elections.6052 U.S.C. § 30104(f)(3). BCRA then subjected those communications to the same regulations previously applied to express advocacy, including prohibiting foreign financing of such communications.61 BCRA also included a sentencing enhancement for campaign finance violations involving foreign contributions specifically from or directed by foreign governments.62

The upshot of these laws is this: in regard to contributions, candidates and political parties are categorically prohibited from soliciting, accepting, or receiving donations from foreign nationals.63 It is likewise illegal for a foreign national to directly or indirectly contribute money or other “thing[s] of value” to a candidate in connection with any federal, state, or local election, or to make any sort of expenditure on express advocacy or electioneering communications.6452 U.S.C. § 30121. The cumulative effect of these laws is that foreign nationals are prohibited from financing a large array of domestic election activity.

B. Foundations, Corruption, and Incoherence

These restrictions on foreign financing sit somewhat uneasily with the rest of U.S. campaign finance law. This Section introduces the development of current U.S. campaign finance law and explains the significant tension between the law and the “political community” rationale relied on in Bluman v. FEC to uphold current law’s prohibition on the foreign financing of independent expenditures.65Bluman, 800 F. Supp. 2d at 286.

1. Foundations: Buckley v. Valeo

Buckley v. Valeo is the 1976 Supreme Court decision evaluating the constitutionality of FECA. Its parameters have been tweaked over the years, but the core dichotomies drawn by the Court in the case continue to define the constitutional limits of campaign finance law. In essence, the Buckley Court created a two-track system for evaluating efforts to regulate the flow of money in politics. It drew a constitutional line between campaign contributions and campaign expenditures. According to the Court, caps on campaign contributions—money given to candidates or political parties to enable them to engage in campaign activities—only indirectly affected speech and therefore were less constitutionally suspect and subject to something less than strict scrutiny review.66 Campaign expenditures, on the other hand, were, in the Court’s view, direct restrictions on speech and, therefore, subject to the most rigorous standard of review.67Buckley, 424 U.S. at 44–45. This has meant in practice that contribution limits have almost always been upheld against First Amendment challenges,68 while expenditure limits have been uniformly struck down.69

The Buckley Court also drew a constitutional line on the state-interest side of the scale. In enacting FECA, Congress defended contribution and expenditure limits as necessary not only to prevent the risk or appearance of corruption but also to promote political equality.70 The Buckley Court accepted that preventing corruption or the appearance of corruption could be a compelling government interest sufficient to support regulation but flatly rejected the equality rationale. Limiting the speech of some in order to enhance that of others, the Court said, was “wholly foreign” to the First Amendment.71Buckley, 424 U.S. at 48–49. Applying this to the FECA provisions challenged in Buckley, the Court upheld the statute’s contribution limits as sufficiently tailored to advance the government’s anti-corruption interest but struck down all of the law’s expenditure limits as insufficiently related to any constitutionally cognizable anti-corruption interest.72Id. at 28–30, 57–59. As long as political parties and candidates were spending money they had raised in compliance with the contribution limits, the Court held, expenditure limits served no additional anti-corruption purpose.73Id. at 58–59. Third-party spending likewise posed no risk of quid pro quo corruption, according to the Court, as long as it was done independently of candidates and parties.74Tokaji, supra note 70, at 384.

These two dichotomies—the constitutional distinctions drawn by the Court in Buckley between contributions and expenditures on the one hand, and preventing corruption and promoting equality on the other—continue to shape campaign finance law today, including in the Court’s seminal 2010 case, Citizens United v. FEC.75558 U.S. 310 (2010).

2. Corruption: Citizens United v. FEC

In the years after Buckley, the Court waffled about exactly what constitutes constitutionally salient “corruption.” Buckley had rejected the protection of political equality as a constitutionally compelling reason to limit political speech but that still left room for creative interpretations of the Court-approved anti-corruption interest. The Court initially was receptive to a fairly expansive view of that interest. Most notably, in Austin v. Michigan Chamber of Commerce, the Court accepted that preventing the corruption of the political process that occurs, in that Court’s view, when corporate entities parlay their market power into political power was a sufficiently compelling reason to prohibit corporations from using general corporate revenue funds to finance campaign contributions and expenditures.76 The Court also accepted this type of rationale in FEC v. Massachusetts Citizens for Life, Inc.77479 U.S. 238 (1986). and First National Bank of Boston v. Bellotti,78435 U.S. 765 (1978). even while limiting its reach.79 But in 2010, in Citizens United, the Court changed course and overturned Austin.80Citizens United, 558 U.S. 310. In doing so, it provided the clearest statement to date that the only form of political corruption the state has an interest in preventing through campaign financing laws is the actuality or appearance of quid pro quo corruption.81Id. at 361.

Citizens United involved one of the provisions enacted in BCRA. As explained above, BCRA prohibited foreign nationals from financing independent expenditures or making soft money contributions to political parties.82 BCRA also imposed an identical restriction on corporations, prohibiting corporations from using general corporate revenue to finance political activities. Specifically, under BCRA, both foreign nationals and corporations are prohibited from making an “expenditure, independent expenditure, or disbursement for an electioneering communication.”83

It was the corporate financing provision of this prohibition that was at issue in Citizens United. Prior to Citizens United, U.S. law permitted corporations to use general corporate revenue funds to purchase issue ads, but they were prohibited from using such funds to purchase independent express advocacy (under FECA as modified by Buckley) or electioneering communications (under BCRA). Citizens United, a nonprofit corporation, wanted to broadcast and advertise Hillary: The Movie, an unflattering portrayal of Hillary Clinton.84 The movie, as well as the advertisements promoting it, would be broadcast in the lead-up to the 2008 Democratic presidential primary, in which Clinton was a candidate.85Citizens United, 558 U.S. at 319–20. Under BCRA, both the movie and the advertisements for it constituted electioneering communications, therefore barring Citizens United from using corporate general revenue funds to pay for them even when done independently of a candidate or political party.86Id. at 321.

Citizens United sued, claiming that this funding prohibition violated the First Amendment. The Supreme Court agreed.87Id. at 372. In doing so, it overturned Austin and replaced its expansive understanding of “corruption in the electoral process” with one much more tightly focused on the risk of candidate-based quid pro quo. Citing Buckley’s invalidation of independent expenditure limits, the Citizens United Court first reiterated that case’s determination that “the independent expenditure ceiling . . . fails to serve any substantial governmental interest in stemming the reality or appearance of corruption in the electoral process.”88 As long as the expenditures were independent, the Court held, they posed no risk of quid pro quo corruption.89See id. at 360–61. The Citizens United Court then considered whether independent expenditures could nonetheless be prohibited based on the corporate “identity” of the speaker.90See id. at 364. Its answer was a resounding no. “Speech restrictions based on the identity of the speaker,” the Court said, “deprive the public of the right and privilege to determine for itself what speech and speakers are worthy of consideration.”91Id. at 340–41. Without Austin’s more expansive definition of corruption as the corruption of the political process, the Citizens United majority saw no reason to distinguish expenditures financed by corporate general revenue funds from expenditures financed by other spenders and struck down the prohibition.

Citizens United’s narrow definition of corruption, combined with its apparently unqualified rejection of speaker-based restrictions, had implications well beyond its corporate context. First, the Citizen United Court’s limitation of the state’s anti-corruption interest to the prevention or appearance of quid pro quo cast doubt on the constitutionality of the aggregate contribution limits that had been part of federal law since FECA was originally enacted.92 As noted above, FECA imposed contribution caps limiting the amount of money an individual or entity could give to a candidate for federal office. This limitation is within even the constrained definition of corruption adopted in Citizens United: large individual donations to candidates create the opportunity for quid pro quo, or at least the appearance thereof. Aggregate limits are different. They limit the overall amount of money an entity can contribute across candidates and other campaign spenders.9352 U.S.C. § 30116. Because no candidates in this scenario are themselves receiving more than the federally capped amount from any single individual, the only anti-corruption interest apparent in aggregate caps is the type of disproportionate influence on the political process embraced in Austin but rejected in Citizens United as constitutionally insufficient. When invited in McCutcheon v. FEC to invalidate the aggregate limits on exactly these grounds, the Court readily did so.94572 U.S. 185, 193 (2014).

Secondly, the tightened definition of the anti-corruption interest embraced in Citizens United paved the way for what we now know as “Super PACs.” Under Buckley, political action committees (PACs) were classified with candidates and political parties as entities that could be more extensively regulated than independent third-party spenders.95 Among the regulations FECA imposed on these groups (candidates, political parties, and PACs) were contribution caps on the amount of money they could receive from donors. The anti-corruption rationale justifying contribution caps on donations to candidates and (to a somewhat lesser extent) political parties sits neatly within the quid pro quo concerns articulated in Buckley, and those caps have been routinely upheld by subsequent courts.96 But the anti-corruption justification for caps on contributions made to PACs is less clear and was not directly discussed in Buckley. After all, if the only constitutionally compelling justification for restricting campaign speech is to prevent the actuality or appearance of quid pro quo corruption, then what is the constitutional justification for limiting contributions to PACs, who are not candidates or political parties, and who therefore will never be in a position to return a quo for a quid?

This was the challenge brought forward in the D.C. Circuit Court of Appeals in a 2010 case, SpeechNow.org v. FEC.97599 F.3d 686 (D.C. Cir. 2010). SpeechNow.org was a political committee formed to engage in express advocacy and, therefore, subject under FECA to regular disclosure requirements and contribution caps.98Id. at 689–92. . But it was an “expenditure only” group, meaning that it would not make contributions to candidates or political parties.99 Consequently, SpeechNow.org argued that its activities posed no risk of quid pro quo corruption as defined in Citizens United and that, thus, there was no constitutionally acceptable reason to cap its incoming contributions.100Id. at 689–92. The D.C. Circuit Court agreed. “[C]ontributions to groups that make only independent expenditures,” the court said, “cannot corrupt or create the appearance of corruption” because “there is no corrupting ‘quid’ for which a candidate might in exchange offer a corrupt ‘quo.’”101Id. at 694–95. The Supreme Court declined to review the case, and Super PACs—expenditure-only groups that do not make contributions to candidates or political parties and therefore can accept unlimited donations—were born.102

As cases like McCutcheon and Speechnow.org make clear, Citizens United did much more than simply change the rules about the use of corporate general revenue funds to finance election-related speech. It cast constitutional doubt on all source-based independent expenditure restrictions, including the foreign-financing bans found in both FECA and BCRA.103 So it was not surprising when the federal district court for the District of Columbia was asked just a year after Citizens United was decided to consider whether those bans also were unconstitutional.

3. Incoherence: Bluman v. FEC

Bluman involved two foreign nationals living in the United States.104 Both were legally present in the United States, but neither were permanent residents.105Id. at 282. Both of them wanted to make independent expenditures supporting candidates for federal office, but under BCRA’s foreign expenditure ban, they were prohibited from doing so.106Id. at 284, 292. Drawing on Citizens United, the Bluman challengers argued that as long as their expenditures were made independently of any candidate or political party, they posed no risk of quid pro quo corruption and, therefore, could not be constitutionally restricted.107Id. at 288 n.3. They further argued that Citizens United had held it was presumptively unconstitutional under the First Amendment to “discriminate” based on the identity of the speaker.108Id. at 289.

Writing for the majority, then-Judge Kavanaugh upheld the prohibition, at least in regard to express independent expenditures.109 Judge Kavanaugh’s opinion does not grapple deeply with Citizens United.110 Instead, he relied on a separate line of cases holding that foreign nationals can be constitutionally excluded from activities that are part of democratic self-government, even when done in ways that would be unconstitutional if applied to U.S. citizens.111 These cases, which date back several decades, stand for the proposition that foreign nationals can be excluded from activities “intimately related” to the process of self-government.112 Activities that the courts have defined as within this category include such things as serving on juries,113 being employed as probation officers114 and police officers,115 and working as public school teachers.116

What these areas have in common, Judge Kavanaugh wrote, is that they all involve the right of a country to define and preserve itself as a distinct political community.117 A nation’s ability to exclude outsiders from participation in democratic processes, the court had said in these cases, is “part of the sovereign’s obligation to preserve the basic conception of a political community.”118 It is core to the very idea of citizenship. The Bluman court saw the prohibition on foreign financing of political advocacy as implicating the same governmental interest.119Id. at 284. Spending money to influence voters, Judge Kavanaugh wrote, is an “integral aspect of the process” of our elections, and as essential to our national self-governance as seating juries and hiring teachers and police officers.120Id. at 288. While speaking about an election is distinct from voting in one, the court acknowledged, expressive acts targeted at influencing elections are both speech and political participation.121Id. at 289. Protecting the state’s ability to preserve such acts to members of the nation’s political community, the court therefore held, constitutes a distinct and sufficiently compelling reason to uphold the foreign financing ban.122

It is notable that the Bluman decision anchored its reasoning in the potentially corrupting influence foreign speech might have on American voters, rather than its effect on elected officials.123 Judge Kavanaugh presumably made this choice because of the broad language in Citizens United implying that independent expenditures do not, as a matter of law, pose a constitutionally sufficient risk of quid pro quo corruption to warrant regulation of political spending. As discussed in the following Part, however, this choice unnecessarily left the Bluman decision resting on a rationale—the potentially persuasive effect of foreign speech on voters—of which the current Supreme Court has shown significant skepticism.

II. Contextualizing Corruption

The Supreme Court summarily affirmed Bluman.124Bluman v. FEC, 565 U.S. 1104 (2012). But there is considerable tension between it and Citizens United. Justice Kennedy’s majority opinion in Citizens United is a love letter to the rational voter. In Citizens United, the Court stated that “voters must be free to obtain information from diverse sources” when deciding how to cast their votes, and the state may not “deprive the public of the right and privilege to determine for itself what speech and speakers are worthy of consideration.”125 In Bluman, the court noted that sovereign states have the power, if not the duty, to protect Americans from foreign efforts to influence U.S. elections, even, apparently, when that influence occurs because an American voter is persuaded by the political advocacy of a foreign speaker to vote for one candidate rather than another.126Bluman, 800 F. Supp. 2d at 290–91. This tension has drawn considerable scholarly attention;127 resolving it requires taking a closer look at current law.

This Part does that by reviewing two areas of the current Court’s campaign finance cases. First, it examines the Court’s differential treatment of anti-corruption rationales that purport to prevent corruption of voters versus those that are aimed at preventing the corruption of public officials. Second, it looks more closely at what the Court has actually said about the effect of independent expenditures on public officials. The Part then uses this deepened understanding to explore the willingness of the Court to continue to uphold restrictions in two areas of law which, Citizens United notwithstanding, plainly make distinctions on the basis of the identity of the speaker. These cases—regarding the speech of public employees and spending in judicial elections—at first appear, like foreign financing bans, difficult to reconcile with the rest of the Court’s campaign finance jurisprudence. But as this Part shows, they readily can be harmonized by recognizing that what the Court is doing in all of these cases is contextualizing corruption by considering the institutional role of the public official at risk of being corrupted and the relationship of that role to the speaker being restricted. The Part then concludes by contextualizing foreign financing bans in this same way by revealing the specific anti-corruption concerns undergirding them.

A. Deconstructing Doctrine

1. Corrupting Voters Versus Corrupting Public Officials

The Supreme Court, especially in recent years, has been deeply hostile to campaign finance regulations that rest on concerns about things that influence voters rather than things that influence elected officials. Buckley rejected as not compelling, and probably not even legitimate, any governmental interest in using campaign finance law to equalize the voices voters hear in political campaigns, but the contemporary Court has gone even further and appears poised to reject all restrictions based on concerns about the “corruption” of voters.128 McCutcheon struck down aggregate spending limits restricting how much total money any individual could contribute to political candidates, rejecting the idea that aggregate limits are necessary to ensure voters hear a variety of messages.129McCutcheon v. FEC, 572 U.S. 185 (2014). Austin v. Michigan Chamber of Commerce briefly recognized a state interest in limiting corporate spending in campaigns to ensure some proportionality between the messages voters hear in the political marketplace and support for those ideas among voters but was overruled by Citizens United.130 And Citizens United itself bristles with hostility toward any hint that it is a legitimate role of government to restrict the messages voters hear.131Citizens United, 558 U.S. at 341. Over and over again, then, the Court has resisted any governmental interest in regulating spending on the basis of the influence such spending has on the minds of the voters, rather than its possible effect on public officials.132

This hostility runs through all of the Court’s recent cases, but it is most visible in cases involving financing of referendum campaigns.133 Referendums do not involve candidates, so any efforts to regulate spending in such campaigns cannot rest on quid pro quo anti-corruption grounds. The Supreme Court emphasized this point in Bellotti.134 Bellotti involved a Massachusetts law prohibiting corporations from using general corporate revenue funds to “mak[e] contributions or expenditures ‘for the purpose of . . . influencing or affecting the vote on any question submitted to the voters.’”135 The Bellotti Court saw this as a transparent effort to restrict speech because of the effect it had on voters: voters might find the corporate-funded speech persuasive and vote the way the corporation preferred in the referendum.136Id. at 789.

The Supreme Court struck down the law.137Id. at 795. In doing so, it elaborated on what it saw as the constitutionally relevant distinction between candidate elections and referendum campaigns. In a referendum, the Court argued, there is no candidate who could be “corrupt[ed]” by corporate money, and therefore no risk of quid pro quo corruption justifying the restriction.138Id. at 790. Far from being a threat to democracy, corporate-funded speech has a role in “affording the public access to discussion, debate, and the dissemination of information and ideas.”139Id. at 783. “In the realm of protected speech,” the Court continued, “the legislature is constitutionally disqualified from dictating the subjects about which persons may speak and the speakers who may address a public issue.”140Id. at 784–85.

In defending its law, Massachusetts made the same argument the Court would later accept, in the candidate-election context, in Austin. It argued that the corporate expenditure prohibition was necessary to preserve the integrity of the electoral process.141Id. at 788–89. The Court, looking to Buckley instead, granted that sustaining the “active, alert responsibility of the individual citizen in a democracy” is a governmental interest of the “highest importance”142 but objected to Massachusetts’s attempt to do so by preventing corporations from exercising “undue influence” on the choices made by voters.143Id. at 789. An influence cannot be “undue,” the Bellotti Court held, just because voters are receptive to it. Political messages mitigated through the minds of the voters are persuasive, not corrupting, and the fact that advertising may persuade voters simply cannot, according to the Court, be a reason to suppress it.144Id. at 789–90.

Bluman’s political community rationale is vulnerable to this same criticism. The Bluman court relied explicitly on the potentially corrupting influence of foreign-financed speech on voters rather than on public officials.145 The Federal Election Commission (FEC) had to grapple with the implications of this almost immediately after Bluman was decided when it was presented with a complaint alleging that a foreign national spent $327,000 opposing a California ballot referendum.146 The FEC commissioners could not agree whether to act on the complaint. The foreign expenditures prohibition in BCRA extended to expenditures made “in connection with a Federal, state, or local election.”147 The statute defined an “election” as “a general, special, primary, or runoff election,” and “a convention or caucus of a political party which has authority to nominate a candidate.”14852 U.S.C. § 30101(1). An FEC regulation further specified that “[e]lection means the process by which individuals, whether opposed or unopposed, seek nomination for election, or election, to [public] office.”14911 C.F.R. § 100.2(a) (2022).

This would appear to exclude referendum campaigns. But the FEC complicated the issue in 1989 when it decided that a foreign national violated the provision by financing political communications about a ballot initiative when it was “inextricably linked” with a candidate for state office.150 This decision, coupled with Bluman’s rationale, convinced some of the FEC commissioners that the foreign funding ban should indeed apply to referendum campaigns as well as candidate elections. These commissioners argued that Bluman recognized as compelling the government’s interest in keeping foreign influences out of U.S. politics, and that this interest is no less compelling in referendum campaigns than in candidate campaigns.151 The FEC commissioners in favor of dismissing the complaint, in contrast, argued that noncandidate ballot initiatives are a form of issue advocacy and that Bluman’s holding regarding protecting the political community was therefore not relevant.152Id.

A split vote resulted in the dismissal of the complaint with commissioners issuing four separate Statements of Reasons.153 But in 2018, the issue arose again, this time in relation to a public referendum in Montana involving mining. A Canadian subsidiary, Sandfire Resources America, Inc., of an Australian corporation, Sandfire Resources NL, made donations to a political committee opposing the referendum.154Id. at 2–3. There was no assertion in the complaint that the referendum issue was meaningfully linked to any candidate or to a candidate election. Instead, the complainant argued that BCRA’s foreign financing ban covered all referendums, regardless of the extent to which the referendum issue was associated with candidates or political parties.155Id. at 3. This time, the FEC was able to reach a decision. Citing Bellotti, it dismissed the complaint.156Id. at 2, 5 n.15. The commissioners addressed Bluman in a footnote which described Bluman as “closely” tying the foreign funding prohibition to “candidate advocacy.”157Id. at 5 n.15. It further highlighted Bluman’s observation that the foreign expenditure ban did not extend to issue advocacy or prevent foreign nationals from “speaking out about issues or spending money to advocate their views about issues.”158 Finally, the commissioners noted the longstanding distinction made by the FEC, Congress, and the courts between referendums and candidate elections.159Id. at 5 n.15, 6 n.18. To the commissioners, this distinction was determinative: whatever compelling interest the government has in preventing foreign influence in American self-governance, it does not extend beyond candidate elections.

But this is an unusual way to think about the governmental interest relied on in Bluman. The self-government cases cited by the district court in Bluman did not involve candidate elections. They involved things like who should be allowed to be schoolteachers and police officers—positions that shape public opinion and implement public policy.160See cases cited supra notes 115–16. Moreover, self-government is hardly just about electing candidates. It is also, perhaps even more directly so, about making policy choices through mechanisms like public referendums. So, if, as per Bluman, the reason for foreign funding bans is that foreign speech should have no role in influencing the choices of American voters, that rationale should be equally potent when foreign financers attempt to influence voter choices operationalized through referendums. If Bluman was correct to frame the anti-corruption interest in that case as preventing foreign influence on political discourse, then the FEC’s decision in the Sandfire matter makes little sense.161 The choices made by the commissioners and the Bluman court do make sense, however, if what foreign funding bans have been targeting all along is not the potentially corrupting effect of foreign financers on voters, but avoiding corruption of public officeholders.

2. Independent Expenditures, Ingratiation, and Indebtedness

The difficulty presented by foreign financing bans is now clear. If the only constitutionally acceptable reason to permit foreign bans is to prevent the appearance or actuality of corrupting officeholders rather than voters, and if independent expenditures do not pose a risk of such corruption as a matter of law, how can prohibitions on the foreign financing of independent expenditures be constitutional?

The answer is to understand how the Court has contextualized corruption. The Court has never held that independent expenditures do not, in fact, create feelings of ingratiation and indebtedness on the part of the public officials who benefit from them. Indeed, the Court has explicitly recognized that even truly independent expenditures can facilitate access and engender feelings of gratitude and indebtedness. The issue, according to the Court, is not that these things do not happen but that they are, in the cases presented, a normal part of the democratic process because elected officials should be responsive to the wishes of their constituencies, including their financial supporters.162 Engendering such feelings, consequently, could not pose a constitutionally salient risk of corrupting the officeholder.163

This reasoning is on vivid display in the majority opinion in Citizens United. Corporations, Justice Kennedy wrote, are “associations of citizens” and often “the voices that best represent the most significant segments of the economy.”164 As such, there is simply nothing corrupt happening when elected officials listen and respond to those voices. Rather, democracy, as Justice Kennedy said, is premised on this type of responsiveness.165 “It is in the nature of an elected representative,” he wrote in Citizens United, “to favor certain policies, and, by necessary corollary, to favor the voters and contributors who support those policies.”166 Since the other state interests asserted in that case depended on the effect of political speech on voters rather than public officials—rationales the Court rejected in overturning Austin—the prohibition on corporate expenditures was struck down.167Id. at 360–61.

This understanding of the likely effect on elected officials of independent expenditures was not new to Citizens United. Indeed, the actual likely effect of independent expenditures on elected officials has been recognized again and again by Supreme Court Justices across the ideological spectrum, writing in both dissenting and majority opinions. In Buckley, the Court acknowledged that a future court could find, in some circumstances, that independent expenditures could pose a risk of quid pro quo arrangements.168 Chief Justice Roberts, in FEC v. Wisconsin Right to Life, Inc., agreed, quoting Buckley to note that “in some circumstances, ‘large independent expenditures pose the same dangers of actual or apparent quid pro quo arrangements as do large contributions.’”169 Justice Stevens, writing for the majority in McConnell v. FEC, declared that contributions to a candidate’s political party “threaten to create—no less than would a direct contribution to the candidate—a sense of obligation.”170 Justice Kennedy, dissenting in that same case, agreed, writing that “[f]avoritism and influence are not . . . avoidable in representative politics. . . . Democracy is premised on responsiveness.”171 “Access in itself,” Justice Kennedy went on,

shows only that in a general sense an officeholder favors someone or that someone has influence on the officeholder. There is no basis, in law or in fact, to say favoritism or influence in general is the same as corrupt favoritism or influence in particular.172Id. at 296.

The Court’s most recent cases have, if anything, made this point even more plainly. In McCutcheon, the Court stated that influence and access “embody a central feature of democracy—that constituents support candidates who share their beliefs and interests, and candidates who are elected can be expected to be responsive to those concerns.”173 During the McCutcheon oral argument, Justice Scalia was quite explicit that there was little difference between contributions and independent expenditures in this regard, stating that

it seems to me fanciful to think that the sense of gratitude that an individual Senator or Congressman is going to feel because of a substantial contribution to the Republican National Committee or Democratic National Committee is any greater than the sense of gratitude that that Senator or Congressman will feel to a PAC which is spending enormous amounts of money in his district or in his State for his election.174

The point is this: the Supreme Court’s campaign finance cases have not rested on a naïve, indeed unsustainable, view that independent expenditures do not generate increased access, ingratiation, and feelings of indebtedness on the part of candidates and public officeholders. Quite to the contrary. Over and over again, the Justices have recognized the empirical thinness between the ingratiating effects of direct contributions and other types of financial support. While the absence of coordination indicative of truly independent expenditures may make them less valuable to candidates,175 it does not erase the risk that their beneficiaries will feel a sense of ingratiation and indebtedness to the people who pay for them.176 When the Court has rejected limitations on independent expenditures, it has not been because these expenditures do not, in fact, have these effects but because of a vision of democratic representation that sees this type of responsiveness to financial supporters as contextually appropriate.177 But this simply is not the case in regard to foreign financiers. No theory of democratic self-governance celebrates the indebtedness of elected officials to foreign financiers.178 Consequently, when the risk of contextually inappropriate ingratiation and indebtedness is created by such expenditures, prohibiting them fits perfectly comfortably into the Court’s current anti-corruption model of campaign finance regulation.

B. Contextualization in Action

Contextualizing the current Court’s view of constitutionally salient corruption and the regulation of political speech in this way also makes sense of several areas in First Amendment law where the Court has, Citizens United notwithstanding, permitted differential restriction of political speech on the basis of the identity of the speaker. As shown below, First Amendment doctrine has consistently recognized a constitutionally salient risk of corruption when the relationship between public officials and potential speakers poses a high risk of tempting the official to use their public power corruptly. The Supreme Court’s willingness to contextualize corruption this way can be seen by examining two areas that, like foreign financing bans, appear to fit awkwardly within the Court’s current body of campaign financing law: the Hatch Act cases involving the political activities of public employees and Caperton v. A.T. Massey Coal Co. involving financing of judicial election campaigns.

Neither of these cases involves the exact same corruption concerns as those at issue in Bluman, but each demonstrates how the Court has consistently been willing to contextualize corruption by examining the government’s interest in reference to expectations about how public officials may use their public power in relation to the regulated speaker.179See infra Sections II.B.1–II.B.2. As seen in these cases, the Court has been perfectly able to recognize as constitutionally compelling the anti-corruption interest present when that relationship poses a risk that public officials will use their public power in contextually corrupt ways. This Section further shows that this type of contextualized corruption by public officeholders is precisely what Congress was targeting in enacting the current foreign financing prohibitions.

1. Public Employees and the Hatch Act Cases

The corrupting potential of permitting federal employees to engage in partisan activities was recognized early in our history,180 but the need for a legislative prohibition did not arise until the expansion of the federal government in the 1820s. As Professor Anthony J. Gaughan put it, this expansion “created an opportunity for the major parties to turn government payrolls into a source of campaign funds.”181Id. at 780–81. President Andrew Jackson, elected in 1828, was the first to take full advantage of this. Prior presidents had retained most of the non-policy level federal employees in place when they assumed office.182 President Jackson, in contrast, wiped out virtually the entire federal bureaucracy, firing most executive branch employees and replacing them with loyalists who had worked for or supported his election campaign.183 But these jobs were not free: partisan employees were expected to contribute a portion of their salary to the reigning political party or lose their positions.184Id. at 781–83. These “assessments” were legal and used by President Jackson and his successors to fund the burgeoning costs of their election campaigns.185Id. Government employees also were expected to volunteer for their political party, raise money for it, and make large campaign contributions to party candidates.186Id. at 783.

By 1857, this “spoils system” served as a “crucial source of campaign funds” for both major American political parties.187 The corrupting effects of this system were predictable, and spurred Congress to enact America’s very first federal election financing law.188 That law, the Appropriation Act of 1876, was designed to protect federal employees from demands that they support the reigning party or lose their jobs. In doing so, it also limited their ability to engage in some political activities, prohibiting most executive branch employees “from requesting, giving to, or receiving from, any other officer or employee of the Government, any money or property or other thing of value for political purposes.”189 The prohibition was immediately challenged by a federal employee who had been convicted under the law for receiving money for political purposes from a fellow federal employee.

The resulting Supreme Court decision, Ex parte Curtis, upheld the law.190Ex parte Curtis, 106 U.S. 371 (1882). Modern First Amendment doctrine lay decades in the future, but the justices in Curtis recognized the question presented as whether the law unconstitutionally restricted Curtis’s “political privileges” by interfering with his ability to engage in political speech and association.191Id. at 371–72. In holding that it did not, the Court, in an 8-1 decision, validated the anti-corruption interest behind the prohibition. The purpose of the law, as the Court understood, was to prevent the corrupt use of public power likely to occur when public officials are permitted to extort federal employees for the officials’ partisan political purposes. As such, the Court said, the law “rests on the same principle” as other laws prohibiting this type of misuse of public power for personal gain, including laws from 1867 making it illegal for federal employees to impose political assessments on navy-yard workmen and from 1870 prohibiting federal supervisory employers from soliciting or accepting “gifts” from other employees.192Id. at 372–73.

In response to the dissent’s objection that the law prohibited even voluntary contributions,193 the majority again took full account of the contextual relationship of public officials to federal employees:

If contributions from those in public employment may be solicited by others in official authority, it is easy to see that what begins as a request may end as a demand . . . . Contributions secured under such circumstances will quite as likely be made to avoid the consequences of the personal displeasure of a superior, as to promote the political views of the contributor . . . .194Id. at 374 (majority opinion).

The likely consequences of this were clear to the Court.

If persons in public employ may be called on by those in authority to contribute from their personal income to the expenses of political campaigns, and a refusal may lead to putting good men out of the service, liberal payments may be made the ground for keeping poor ones in.195

The Court also recognized that these practices enabled political parties to corruptly convert public money for their partisan gain.

[I]f a part of the compensation received for public services must be contributed for political purposes, it is easy to see that an increase of compensation may be required to provide the means to make the contribution, and that in this way the government itself may be made to furnish indirectly the money to defray the expenses of keeping the political party in power that happens to have for the time being the control of the public patronage.196Curtis, 106 U.S. at 375.

In light of these strong anti-corruption interests, the Court readily held that Congress was acting well within its constitutional authority in limiting the political speech and association rights of public workers.

A more comprehensive law, the Hatch Act, was passed by Congress in 1939.197 The Hatch Act broadly prohibits civil servants from engaging in most partisan political activities.198 As originally enacted, it prohibited partisan activities, both on and off duty, of all “classified” employees.199 The Hatch Act was seen as necessary in part because of concerns that President Franklin D. Roosevelt’s political allies were diverting money from the massive, federally funded Works Progress Administration for partisan, political purposes.200 Like its predecessor, it was immediately challenged in court, this time by a federal employee named George Poole, who was employed by the federal government as a skilled mechanic (a roller) in a federal mint. Poole admitted he violated the Hatch Act by working as a ward executive, poll watcher, and “paymaster” for a political party during a partisan election. He argued that the Hatch Act violated the First, Ninth, and Tenth Amendments.201

The Supreme Court again upheld the restrictions in its illuminating decision in United Public Workers of America v. Mitchell.202Id. at 75. Poole had argued that the statute was overly broad as applied to him because he was an “industrial” worker whose job did not involve contact with the public (in contrast to “administrative” workers whose work did involve such contact).203Id. at 102. The relevance of this distinction, to Poole, was that the government’s interest was in promoting politically neutral administration of the law—in other words, to protect the public from the perception (and actuality) that governmental services might be provided in politically biased ways.204Id. at 101. Because Poole did not interact with the public in his official duties, this interest could not support restrictions on his partisan activities.205Id. His political biases, he argued, should be considered a “matter of complete indifference to the effective performance” of his official duties.206Id.

The majority opinion, written by Justice Reed, rejected this narrow view of the government’s anti-corruption interest. Politically neutral administration of the laws was not the only, or perhaps even primary, state interest at stake, Justice Reed’s opinion recognized. Instead, the threats being addressed by the statute included the risk that elected officials would corruptly use their public power over federal employees to build a party machine and entrench a one-party system.207Id. at 98–100. The majority understood that, given the contextual relationship between elected officials and federal employees, permitting the political activity at issue risked enabling public officials to corruptly use their political power for partisan or personal gain. The law, in other words, restricted the partisan activities of a group of individuals based not on the effect of their activities on the public, but on the risk of corruption they posed on the part of elected officials. To declare that risk “beyond the power of Congress to redress,” Justice Reed wrote for the majority, “would leave the nation impotent to deal with what many sincere men believe is a material threat to the democratic system.”208Id. at 99.

The significance of contextualizing the anti-corruption interest this way is even clearer when we consider Justice Black’s dissent. Unlike the majority, Justice Black focused exclusively on Poole’s limited view of the relevant corruption interest at issue. So, rather than considering whether the unrestrained ability to use federal employees to advance their own political campaigns posed a risk of corrupting public officials, Justice Black asked only whether Poole’s political activity risked corrupting the “political process”: “It is argued that it is in the interest of clean politics to suppress political activities of federal and state employees. It would hardly seem to be imperative to muzzle millions of citizens because some of them, if left their constitutional freedoms, might corrupt the political process.”209

Foreshadowing the current Court’s skepticism about laws based on the corruption of voters rather than officeholders, Justice Black went on to fervently reject the idea that the public needed to be protected from the speech of others. “Popular government,” he said, “must permit and encourage much wider political activity by all the people. . . . ‘Those who won our independence had confidence in the power of free and fearless reasoning and communication of ideas to discover and spread political and economic truths.’”210 “There is nothing,” he concluded, about government employees that “justifies depriving them or society of the benefits of their participation in public affairs.”211Id. at 111. After framing the issue this way, as exclusively concerned with whether the political speech of public employees would “corrupt the political process,” Justice Black had no difficulty striking down the restrictions as beyond the power of Congress.212Id. at 112–13.

Even Justice Black, though, acknowledged that the risk the majority focused on—that public officials would corruptly use their public power for their partisan political benefit—could in a different case support restrictive legislation. “It may also be true,” Justice Black wrote, that “some public officials . . . . may use their influence to have their own political supporters appointed or promoted.”213Id. at 114. They may “discharge some employees” and promote others “on a political rather than on a merit basis.”214Id. That misuse of public power would, Justice Black wrote, be “so great an evil as to require legislation.”215Id. But because Poole himself was not in a position to wield such corrupt power, Justice Black believed that his partisan activity could not be so constrained, even if others’ could.216

What is notable about Curtis is the extent to which the disagreement between the majority and Justice Black depends on precisely the same issue in campaign finance cases today: whether the anti-corruption interest asserted by Congress is about preventing the corruption of voters or public officials. When framed as protecting the public from being “corrupted” by the partisan preferences of civil servants (as it was by Justice Black), the government’s interest fades before the imperative that the power of the people to “discover and spread political and economic truth”217 must not be hindered. But when framed as preventing the self-interested abuse of public power by elected officials (as it was by Justice Reed), Congress’s anti-corruption interest prevails. In fact, when contextualized the latter way, even the dissenting Justices agreed that Congress’s interest would be constitutionally sufficient to restrict the partisan activity at issue; they disagreed only about what category of speaker could be so restricted.218

The Supreme Court’s last major opinion addressing the Hatch Act’s restrictions on the partisan activity of public employees came in 1973, in United States Civil Service Commission v. National Ass’n of Letter Carriers.219413 U.S. 548 (1973). The specific provision of the Hatch Act at issue in National Ass’n of Letter Carriers was the prohibition against federal employees’ active involvement in managing partisan political campaigns. The Court again upheld the Act, this time against a challenge that the statute was unconstitutionally vague and overbroad. In “unhesitatingly” reaffirming Mitchell, the National Ass’n of Letter Carriers Court was clear that the interest in preventing corruption of public officials was itself a sufficiently important (even if not exclusive) justification for the restrictions.220 Anticipating later debates about the difference between referendums and candidate elections, the Court noted that the bar against political activity did not prohibit civil servants from actively participating in the management of non-partisan elections, referendums, municipal ordinances, or other issues not “specifically identified with any national or state political party.”221Id. at 562. The goal of the Act, as the Court saw it, was not to limit the potentially persuasive speech of federal employees, but rather to control the temptation of public officials to use their power over the federal bureaucracy to corruptly use its public power to “build a powerful, invincible, and perhaps corrupt political machine” at public expense, or hire and promote employees based on partisan loyalty rather than merit.222 This risk—that public officials would corruptly misuse their public power for partisan gain—was, according to the National Ass’n of Letter Carriers Court, well within Congress’s power to prevent.

The point here is not to defend the Hatch Act in all its incarnations. Congress has significantly reduced the scope of the Act over the years, and its most restrictive provisions now apply to a small group of federal employees engaged in particularly sensitive work only.223 Rather, the point is to illustrate that the Supreme Court, in this trio of cases, has recognized that the government’s anti-corruption interest in each of these contexts is firmly focused on the corrupt misuse of public power by elected officials rather than the persuasiveness of speech to voters, and has accepted this contextualized risk as constitutionally sufficient to support some restrictions on the political activities of certain speakers. In these cases, the Court’s contextualized understanding of the corruption risk is key. When the corruption interest is not contextualized and is framed only as influencing voters and the “political process” (as done by Justice Black in his dissent in Mitchell),224 the restrictions fail. But when recognized in context as preventing the corrupt use of public power unrelated to the persuasive power of the speech (as done by the majority in all three of these cases), they survive. These cases thus demonstrate that recognizing the contextual situation in which the risk of corruption occurs, including especially the relationship between public officials and proposed speakers, is essential to properly understanding the Court’s jurisprudence in this area.

2. Caperton v. A.T. Massey Coal Co.

The careful attention to the context of corruption also is apparent in another, more recent Supreme Court case that is otherwise a puzzling fit with the Court’s other campaign finance cases, Caperton v. A.T. Massey Coal Co.225556 U.S. 868 (2009). Caperton involved independent and other expenditures made in a West Virginia state supreme court election campaign.226 The expenditures were made by Don Blankenship, the Chairman, Chief Executive Officer, and President of A.T. Massey Coal Company (Massey Coal).227Id. Massey Coal was involved in a high-profile, high-stakes civil lawsuit in West Virginia.228Id. at 872. A jury had found Massey Coal liable for “fraudulent misrepresentation, concealment, and tortious interference” with existing contractual relationships and had awarded the plaintiffs in the litigation “$50 million in compensatory and punitive damages.”229Id.

Knowing the case would be appealed to the state supreme court, Blankenship spent three million dollars in contributions and independent expenditures to replace a sitting state supreme court justice, Justice McGraw, with a new justice preferred by Blankenship, Brent Benjamin. Blankenship’s spending in the race was extensive, constituting more than the total amount spent by the campaign committees of both candidates combined.230Id. at 873. Benjamin, Blankenship’s preferred candidate, ended up winning the election by a narrow margin. When the Massey Coal appeal arrived at the state supreme court, Justice Benjamin refused to recuse himself and cast the deciding vote, in a 3-2 decision, overturning the damages award.231 Caperton, the lead plaintiff, sued.

Caperton’s argument was that Justice Benjamin’s refusal to recuse himself violated his federal constitutional due process rights.232Id. at 873–74. The case, consequently, did not directly involve the First Amendment. The question presented was not whether Blankenship could engage in his political activity, but rather whether his advocacy created the actuality or appearance of unconstitutional bias in Justice Benjamin, thereby requiring Justice Benjamin’s recusal. But as the litigants and the Court realized, the underlying factual claim about the effect of independent expenditures on the elected officials who benefit from them was the same as that posed in First Amendment challenges to campaign finance regulations: given the contextual relationship between Justice Benjamin’s institutional role as a judge and Blankenship’s spending on his behalf, would Justice Benjamin feel inappropriately indebted to Blankenship for the three million dollars Blankenship expended to promote Justice Benjamin’s election?233Id. at 882–84.

Lawyers following the litigation understood the significance the case posed to the Court’s campaign finance jurisprudence. Writing an amicus curiae brief on behalf of the Center for Competitive Politics in support of the respondents, Bradley A. Smith—long-time campaign finance regulation-foe and former-FEC Chairman234—argued that finding for Caperton would require overturning the Supreme Court’s “longstanding jurisprudence that independent expenditures are not and cannot be corrupting.”235Id. at 6. There was no accusation of explicit quid pro quo corruption in the case, or any indication that Justice Benjamin received any personal (as opposed to political) benefit from Blankenship’s independent expenditures. Instead, the benefit to Justice Benjamin, Smith argued, resulted only from the persuasive effect of Blankenship’s advocacy on the choices made by voters. As Smith’s brief put it: “Brent Benjamin did not ‘get’ $3 million. The most that can be said that he ‘got’ was elected, though this was necessarily the result of many factors, not the least of which were the intervening decisions of hundreds of thousands of West Virginia voters.”236Id. at 9.

The Brennan Center for Justice at New York University School of Law (the Brennan Center), writing an amicus curiae brief for the petitioner (arguing that recusal was necessary) likewise recognized the connection between the question presented and the Court’s treatment of independent expenditures in campaign finance cases.237 The Brennan Center, with several other institutional supporters of campaign finance regulations, pointed in their brief to the “pervasive” belief on the part of the public that campaign contributions “buy influence on the bench.”238Id. at 12–13. That most of Blankenship’s spending came in the form of independent expenditures or contributions to PACs (rather than directly to Justice Benjamin’s campaign committee) had only “marginal salience,” the Brennan Center argued, when evaluating the “fundamental fairness concerns” at issue and the “overwhelming probability of bias” on the part of Benjamin, requiring recusal.239Id. at 23–24 (citation omitted). The question was thus presented squarely to the Supreme Court: would the Court agree with Caperton that large independent expenditures made on behalf of a state supreme court justice were likely to engender a constitutionally impermissible “debt of gratitude” in the elected official toward the individual who financed independent expenditures in support of his election?240Caperton, 556 U.S. at 882.

The Supreme Court ruled for the petitioners, holding that Justice Benjamin’s refusal to recuse violated the federal constitutional right to due process. Justice Kennedy wrote the majority opinion. Justice Kennedy’s opinion recognized that there was no allegation of a quid pro quo exchange between Blankenship and Justice Benjamin.241Id. at 886–87. Justice Kennedy also recognized that Blankenship’s expenditures benefited Justice Benjamin only because of the intervening choices made by West Virginia voters. As Justice Kennedy wrote, “[i]n the end the people of West Virginia elected [Justice Benjamin], and they did so based on many reasons other than Blankenship’s efforts.”242 Nonetheless, Justice Kennedy went on, stating that due process requires recusal when the circumstances “offer a possible temptation” toward judicial bias.243 In this case, he concluded, “the risk that Blankenship’s influence engendered actual bias is sufficiently substantial that it ‘must be forbidden if the guarantee of due process is to be adequately implemented.’”244 Even in the absence of a quid pro quo, Blankenship’s “extraordinary contributions” to Justice Benjamin’s electoral efforts created a “serious, objective risk of actual bias.”245Id. at 886.

As the dissenting Justices pointed out, the majority reached this conclusion despite the fact that all but $1,000 of Blankenship’s spending in support of Justice Benjamin was in the form of either independent expenditures or contributions to pro-Justice Benjamin PACs.246 The bulk of Blankenship’s spending, in other words, was not put under the control of Justice Benjamin or his campaign committee. Notably, though, this distinction between contributions and independent expenditures, usually so important in campaign finance cases, seemed of only minimal importance to any of the justices in Caperton. The Justices in the majority clearly regarded it as irrelevant to their determination that there was a constitutionally unacceptable risk that Justice Benjamin’s sense of gratitude for Blankenship’s expenditures would create the appearance or actuality of bias.247Id. at 882 (majority opinion). But even Chief Justice Roberts’s principal dissent directed most of its criticism toward what the dissenters saw as the expanded and unmanageable recusal standard adopted by the majority, rather than the purportedly important distinction between contributions and independent expenditures.248 Even in the portion of the dissent that did address the issue, Chief Justice Roberts did not assert that Blankenship’s expenditures would not create a feeling of indebtedness or gratitude in Justice Benjamin. Instead, he argued only that the Court had previously held that independent expenditures are not controlled by candidates and therefore are less valuable to them than direct contributions.249

As many scholars have pointed out, Caperton, like Bluman, seems to be in significant tension with Citizens United.250 Election law scholar Richard Hasen highlights the decision in his seminal article, Citizens United and the Illusion of Coherence.251 As Hasen points out, the Court in Citizens United rejected each of the arguments that could have supported the Caperton corruption decision rationales: the anti-distortion rationale (that spending unconnected to underlying support for the ideas asserted distorts democratic discourse); the actual corruption rationale (that the beneficiary of independent spending would feel improperly indebted to the spender in a potentially corrupting way); and the appearance of corruption rationale (that the risk of the appearance of improper indebtedness warrants regulation even in the absence of actual corruption). Hasen speculates that perhaps Justice Kennedy (the sole Justice in the majority in both cases) “does not quite believe” the sweeping statements about the effect of independent spending on corruption made by the Court in Citizens United. Alternatively, he posits that Justice Kennedy may believe that the role of elected judges is different than that of elected representatives.252Id. at 613–15.

Contextualizing the corruption question presented in Caperton in light of the deep doctrinal dive done above allows us to see a third alternative: Citizens United and Caperton are not as contradictory as they first appear because Citizens United did not assert that independent expenditures cannot in fact engender feelings of indebtedness and gratitude. Rather, it held that such feelings are appropriate, not corrupting, in the context of the duties elected representatives owe their constituents. When such representatives respond to their donors with this type of gratitude, consequently, they are not acting corruptly; they are acting in accordance with their institutional role relative to the political spender. Elected judges, however, have a different institutional role, meaning the same feelings of indebtedness and ingratiation when engendered in them do pose an unacceptable risk that their use of judicial power will be corrupted by the exact same type of spending.253

As we saw with the Hatch Act cases, when viewed this way, Caperton’s reasoning does not conflict with Citizens United at all. Instead, the majority opinion in Caperton fits comfortably within the Court’s other jurisprudence, by recognizing the validity of regulations addressed at preventing the risk that public officials will corruptly use their public power in ways inappropriate to their particular institutional duties relative to the proposed speaker. This has nothing to do with fears that the speech will somehow “corrupt” voters or the political process. Rather, as the Brennan Center’s amicus curiae brief in Caperton put it:

Elected legislators are expected to serve interest-group constituencies, including contributors. The representative branches function best when officials are lobbied by contributors and non-contributors alike. Judges, including elected judges, are different in constitutionally salient ways. Judges are responsible for the fundamental promise of fair, impartially-decided cases. Judges function properly when they are “lobbied” only within the structured adversarial process and solely on the basis of law—not on the basis of personal, financial, or electoral interests. Everyone suffers when a judicial decision reinforces suspicions that the biggest donor, not the best case, wins.254

C. Corruption in the Context of Foreign Financing

The examples above illustrate the Supreme Court’s acceptance of several propositions: (1) independent expenditures can in fact engender feelings of gratitude and ingratiation in the elected officials who benefit from them, even if this effect is less than in the case of direct contributions; (2) because this type of responsiveness does not constitute the misuse of public power in electoral politics, these feelings of ingratiation and indebtedness are not corrupting when the beneficiaries are elected representatives, and therefore preventing them cannot support restrictions on political speech; (3) but when political speech does facilitate the misuse of public power by public officials considered in the context of their particular duties and relationship to the “speaker,” the government’s anti-corruption interest can be sufficiently strong to support restrictions on some political activities.

We can now see how failure to properly contextualize the anti-corruption interest underlying foreign financing bans has cast unnecessary doubt on the constitutional validity of current prohibitions on the foreign financing of independent expenditures. The interest at stake in these prohibitions is not the constitutionally insufficient goal of preventing “corruption” of the political process by exposing Americans to disfavored speech, but rather the constitutionally compelling interest in preventing the corrupt use of public power by elected officials. And the Supreme Court has not held that independent expenditures do not engender feelings of ingratiation and indebtedness in those who benefit from them—only that those feelings are an appropriate form of responsiveness in electoral politics and therefore are not corrupting when formed between officials who are supposed to be responsive in this way and the people to whom they are supposed to be responsive.

Thus, Bluman is unconvincing, not because it reaches the wrong result but because it uses the wrong framework.255 Bluman framed foreign funding bans as being about protecting voters from foreign influence. Like Justice Black’s dissent in Mitchell, this fails to correctly contextualize the corruption concerns primarily underlying these bans. But the historical record shows clearly that concerns about the corrupting influence of foreign election activity on public officials have deep roots in our constitutional regime and were the dominant concerns underlying the foreign financing prohibitions in current law. Foreign financing prohibitions are not designed to prevent corruption of American voters; they exist to prevent the corrupt use of public power by public officials. A review of the evolution of restrictions on foreign spending in domestic elections demonstrates the long recognition, by Congress and the courts, that foreign financing bans were enacted to prevent this same type of risk.

1. The Founders’ Fears

As Professor Matt Vega has scrupulously documented, the founding generation was deeply fearful that foreign interests would corrupt the new nation’s public officials.256Vega, supra note 248, at 960–62. James Madison argued that a stronger national government was necessary to “secure the Union against the influence of foreign powers over its members.”257 Alexander Hamilton worried that members of the Senate might be willing to “prostitut[e] their influence in that body as the mercenary instruments of foreign corruption,” and that republics “afford[] too easy an inlet to foreign corruption.”258 John Jay was concerned that elected officials might use unconstrained power to corruptly enter into treaties to advance their private interests.259 These concerns were not casual.260 As Hamilton wrote in Federalist 68:

Nothing was more to be desired than that every practicable obstacle should be opposed to cabal, intrigue, and corruption. These most deadly adversaries of republican government might naturally have been expected to make their approaches from more than one quarter, but chiefly from the desire in foreign powers to gain an improper ascendant in our councils.261

This concern is most plainly manifested in the Emoluments Clause, which prohibits any person holding an “[o]ffice of [p]rofit or [t]rust” from accepting any present of any kind from a foreign state.262U.S. Const. art. I, § 9, cl. 8. Notably, this clause does not just prohibit bribery; it eliminates the risk of unconstitutional influence by prohibiting entirely the acceptance of unauthorized gifts, regardless of any expectation or evidence of a quid pro quo. As U.S. Supreme Court Justice Story wrote almost 200 years ago, the Emoluments Clause “is founded in a just jealousy of foreign influence of every sort.”263

The fear of foreign influence of public officials was not only expressed in the Emoluments Clause, however. It also underlies the residency requirement for federal officeholders,264 the Elections Clause,265 the impeachment clauses, the treaty-making and appointments provisions,266 and parts of Article II regarding the structure of the Executive branch.267 The FARA, FECA, and BCRA provisions regarding foreign financing of election activity make clear that these regulations were also concerned with this corruption of public officials. Current events demonstrate that the risk remains and is difficult to address in other ways.

2. Foreign Financing Bans and the Corruption of Elected Officials

a. Foreign Agents Registration Act

As noted above, FARA was enacted in 1938 in response to concerns about the distribution of Nazi propaganda.268Am. L. Div., supra note 19, at 3–5. Later amendments, however, shifted the focus of the statute as foreign efforts to influence domestic elections were seen as shifting away from efforts to influence public opinion and toward efforts to influence elected officials.269Id. at 9–11. This can be seen both in the text of the 1966 amendments (discussed above), and also in the remedies chosen by Congress in response to each distinct threat. When the original purpose of FARA, in 1938, was to “publicize the nature of subversive or other similar activities” to deter the spread of foreign propaganda among American voters, the statutory remedy chosen by Congress and upheld by the Supreme Court was disclosure, not prohibition.270 But when the perceived danger shifted in 1966 to foreign influence on elected officials rather than voters, the law shifted as well, choosing prohibition rather than disclosure as the contextually appropriate remedy for this new threat.

The Court’s decisions addressing FARA, Viereck v. United States271318 U.S. 236 (1943). and Meese v. Keene,272481 U.S. 465 (1987). demonstrate this. Viereck, decided in 1943, was the Court’s first opportunity to review FARA. As required by the Act, the petitioner, in 1940, had registered as an agent of the German government.273Viereck, 318 U.S. at 239. In several supplemental disclosure statements, he disclosed his work on behalf of his German principal in regard to the distribution in the United States of various communications made in the course of that work, including preparing and distributing editorials, pamphlets, and a book denouncing the British war efforts.274Id. at 239–40. It was later revealed that he had done significant additional work promoting German interests in the war and denigrating those of the British, including writing and distributing speeches for members of Congress.275Id. He defended his nondisclosure of these additional efforts by claiming that they were done on his own behalf, rather than in the course of his work as an agent of a foreign entity, and therefore not subject to FARA’s disclosure rules.276Id. at 240.

At the time of his activities, the statute was unclear as to whether disclosure of this type of purportedly personal activity was required—the question presented in the case was whether the text of the original law allowed the Secretary of State to require the disclosure of all political activities while a registered agent or only as a registered agent. The 1942 amendments to the Act clearly adopted the more expansive interpretation,277Id. at 243, 245–47. but the Viereck majority held that the law, as in effect when the petitioner made his disclosures, did not permit the Secretary to require any disclosures other than those he had made. In doing so, however, the Court cast no doubt on the constitutionality of the later, more expansive version of the statute;278 it held only that those broader disclosure requirements could not be applied ex post facto to the petitioner.279Id. at 247.

The dissent, written by Justice Black and joined by Justice Douglas, makes this point clear. Justices Black and Douglas, the Court’s renowned First Amendment warriors, believed the Court erred only in not permitting the expanded disclosure requirement to have been applied to the petitioner’s full range of activities. Justice Black reached this conclusion by recognizing the important role disclosure plays in facilitating First Amendment values. FARA, Justice Black wrote, was intended to enable the “proper evaluation of political propaganda emanating from hired agents of foreign countries.”280Id. at 251 (Black, J., dissenting). As such, he said, it rests on the “fundamental constitutional principle that our people, adequately informed, may be trusted to distinguish between the true and the false” and ensure the American people will not be “deceived by the belief that the information comes from a disinterested source.”281Id. Viereck, then, stands for the principle that when the political activity of foreign nationals is regulated for the purpose of protecting the public, disclosure is an appropriate, and indeed ideal, remedy.

This same theme was reiterated more than forty years later when the Court again examined FARA in Meese.282Meese v. Keene, 481 U.S. 465 (1987). The dispute in Meese was about whether FARA’s requirement that certain foreign-sourced material be labeled as “political propaganda” unconstitutionally chilled free expression. The challenge was brought by a U.S. citizen who wanted to show Canadian films distributed in the United States by a registered agent of the Canadian government. The films met the statutory definition of “political propaganda” and therefore under FARA had to be labeled as such. The petitioner argued that “political propaganda” is a pejorative term and that applying the label to the films at issue would harm his reputation and therefore dissuade him from showing the films. The majority opinion, written by Justice Stevens, disagreed. FARA required registration and disclosure of agents of both friendly and unfriendly nations, and defined “political propaganda” as including not just misleading advocacy but also “advocacy materials that are completely accurate and merit the closest attention and the highest respect.”283Id. at 467, 469–72, 476–77. The petitioner, therefore, was incorrect to assume that the public would find the term inherently pejorative.284 In reaching this conclusion, the Court confirmed that the rationale underlying the registration provisions of FARA was to “requir[e] public disclosure by persons engaging in propaganda activities” so that “the people of the United States may be informed of the identity of such persons and may appraise their statements and actions in the light of their associations and activities.”285 A constitutional mandate requiring the withholding of this information, not its statutorily mandated disclosure, would be what would “paternalistically” prevent American voters from evaluating its worth for themselves.286Id. at 481–82.

These cases demonstrate that FARA’s earliest restrictions on the political activities of foreign nationals were aimed at the effect those activities might have on public opinion and the choices made by American voters. In this context, FARA’s chosen remedy—disclosure of the foreign source of the materials at issue—was repeatedly upheld by the Court as not only permissible under the First Amendment but as affirmatively facilitating the values underlying it. Nothing in these cases, however, addresses the question of what restrictions might be necessary and constitutionally appropriate to combat the very different corruption concern regarding the risk that foreign-funded political activity might corruptly influence elected officials. This question came into focus only later, when the 1966 amendments to FARA shifted congressional concern to the corrupting effect of foreign political spending on members of Congress. As noted above, the 1966 amendments were triggered by a series of scandals revealing the extent to which foreign entities, including foreign governments, were making campaign contributions to congressional candidates.287 Recognizing that foreign efforts to influence U.S. policy had shifted from influencing voters to directly influencing legislators, the focus of Congress shifted as well by prohibiting foreign agents from contributing money or any other thing of value in connection with an election for public office.288Powell, supra note 287, at 961. The appropriateness of prohibitions as the necessary remedy for this distinct corruption risk is discussed in Part III.

b. Federal Election Campaign Act

The expanded prohibitions on foreign financing of election activities, included in the 1974 amendments to FECA, likewise rested on concerns about foreign influence on public officials rather than voters. As discussed above, they resulted from the revelations of the Watergate investigation, which revealed that President Nixon had accepted more than ten million dollars in overseas donations during his 1972 re-election campaign, including allegedly from Mexican, Iranian, and French interests.289Id. at 961 n.20. Senator Lloyd Bentsen (D-Tex.), who introduced the 1974 amendments, was clear about their anti-corruption purpose:

Mr. President, all of us have heard the stories, I am sure, in recent months of the enormous amounts of money contributed in the last political campaign by foreign nationals. We have heard of the hundreds of thousands of dollars sloshing around from one country to another, going through foreign banks, being laundered through foreign banks; and we have heard allegations of concessions being made by the Government to foreign contributors.290Am. L. Div., supra note 19, at 174.

“Many in this country,” Bentsen concluded, “have expressed concern over the inroads of foreign investment in this country . . . . Is it not even more important to try to stop some of these foreigners from trying to control our politics?”291Id. at 175. Additional amendments added in 1975 clarified the statutory text to make clear that direct contributions by foreign nationals (not just those made on behalf of foreign principals) were also prohibited. These restrictions were subsequently re-codified again in the 1976 amendments to the same statute, which formed the version of the statute addressed by the Supreme Court in Buckley v. Valeo.292

c. Bipartisan Campaign Reform Act

Concerns about foreign financing of election activities were raised yet again in the aftermath of the 1996 elections, when the Senate Governmental Affairs Committee undertook a special investigation into “illegal or improper activities in connection with 1996 federal election campaigns.”293 The Committee, chaired by Senator Fred D. Thompson (R-Tenn.), traced the history of the foreign funding ban back through FARA and FECA, including how those laws since 1966 had explicitly banned foreign financing of election activity.294 The Report then went on to explain how developments since the last major FECA amendments, including the unlimited ability of political parties to raise soft money295See id. at 4472–73. to spend on “issue ads” by avoiding the use of Buckley’s “magic words,” had changed the legal landscape of campaign financing and threatened to undermine the earlier goals of reforms.296

To the Republicans concerned about the fundraising tactics used by President Clinton’s election team, these concerns most certainly included foreign financing. A “central focus of the Committee’s investigation,” the Report stated, “was the manner in which illegal foreign money made its way into the federal election process.”297Id. at 4471. Citing the 1966 FARA amendments, the Report noted that current law “explicitly makes it illegal for any foreign national to contribute to any federal or non-federal election in the United States, either directly or indirectly.”298Id. Nonetheless, the Committee reported that such financing occurred. “[T]he DNC’s obviously desperate and aggressive search for large contributions” led donors, including foreign nationals, to believe that their contributions were “more likely than ever to lead to personal gain.”299Id. at 4471–72. Members of the House also saw this as a national security matter, referring to voting for the foreign funding ban as “stand[ing] up for national security.”300

The Committee backed up these assertions with numerous examples of foreign nationals receiving benefits in apparent exchange for access or influence over the Clinton Administration. These examples included donations to the DNC made by a South Korean businessman hoping the administration would support his business activities in the United States,301 involvement of the Chinese government in “funding, directing, or encouraging” foreign contributions,302Id. pt. 1, at 33–34. and the strawman donations received by Vice President Al Gore during a fundraising event at a Buddhist temple.303 These and similar incidents, the Committee reported, demonstrated “the DNC and White House’s reckless fundraising disregarded,” in the Committee’s words, “an obvious risk—the danger that powerful foreign nationals, or even governments, would attempt to buy influence through campaign contributions.”304Id. pt. 1, at 33.

This “flood of foreign money,” the Committee noted, may have “permitted interested foreign parties to influence the U.S. political process,” including by using foreign nationals as conduits to promote the interests of foreign governments and acquire influence over political appointments, foreign policy and national security, and U.S. trade policy.305Id. at 46–50. The Committee had good reason for these concerns. It found that money was funneled to the DNC from individuals close to the foreign governments, including at least one agent of the Chinese government who subsequently attempted to hide that relationship.306 Another donor was connected to Chinese intelligence,307 while yet another “may possibly have had a direct financial relationship” with the Chinese government.308Id. These efforts, the Committee concluded, were part of an effort by China to influence U.S. policy toward the nation, specifically through influencing U.S. politics by financing the election campaigns of public officials.309

The Committee saw this as posing an unacceptable risk of corruption even when the financing was not put under the direct control of the candidate. The DNC, the Committee noted, was not formally under the control of Clinton’s campaign committee but, like Super PACs and other “independent” groups today, was nonetheless deeply entwined with the President’s re-election efforts.310 It was operated by Clinton loyalists, who hatched the (then) novel plan to use the new legal categories created by Buckley and subsequent Supreme Court decisions to enable the DNC to finance issue ads with unregulated soft money raised by selling access to members of the Administration.311Id. at 58–60, 65. The corrupting potential of this scheme was clear to the Committee: in the words of one witness, “the person solicited for a $250,000 soft money contribution would logically anticipate something in return.”312

The result of the Committee’s extensive investigation was BCRA. BCRA Title 1, subtitled “Reduction of Special Interest Influence,” prohibited political parties and candidates from soliciting or accepting soft money, thus closing that avenue for foreign nationals (and others) hoping to gain access to, and influence with, public officials.313 Determined to close all the loopholes identified by the Thompson Committee, BCRA also changed the prohibition on foreign financing of political activity to include for the first time an explicit prohibition not just on foreign contributions but also on foreign funding of expenditures and independent expenditures. As explained in the Federal Register, in a provision titled “‘Strengthening Foreign Money Ban,’ Congress amended [52 U.S.C. § 30121] to further delineate and expand the ban on contributions, donations, and other things of value,” by explicitly prohibiting foreign financing of contributions, electioneering communications, expenditures, and independent expenditures.314

It is these prohibitions that were at issue in Bluman. Unlike earlier versions of FARA and other similar laws designed to protect voters from persuasive, if unpalatable, speech, these restrictions on foreign election activities are squarely aimed at preventing the corruption of public officials. These restrictions are perfectly constitutional, then, because the sense of indebtedness and ingratiation that even independent expenditures can engender in their beneficiaries poses a risk of corruption of public officials when done by foreign entities.

III. Foreign Affairs, National Security, and the Appropriateness of Prophylactics

At this point, this Article has demonstrated three things. First, the Court has never said that independent expenditures do not in fact engender feelings of obligation and indebtedness on the part of the elected officials who benefit from them. Rather, the Court has leaned into that sense of obligation as a valid part of democratic self-government. There is, however, no similar value to self-government when elected officials feel obligated to foreign financers. Indebtedness to foreign actors, in sharp contrast to the sense of obligation examined in cases like Citizens United, has been seen as dangerously corrupting since the nation’s founding. Second, as we have seen in situations like those presented in Caperton and the Hatch Act cases, the Supreme Court has contextualized its understanding of the risk of constitutionally compelling corruption. Elected judges, for example, have a different contextual relationship with their voters and different institutional duties than do elected representatives, and therefore the risk of constitutionally salient corruption posed by independent expenditures is different for judges than for elected representatives. Finally, we have seen that current restrictions on foreign financing of election activity clearly target this latter type of corruption, the risk that elected officials will inappropriately reward foreign financial supporters, rather than some vague idea that foreign-financed speech poses a unique risk of “corrupting” voters or distorting public discourse—rationales that the contemporary Court has consistently rejected as constitutionally sufficient reasons to regulate election activity.

This alone is sufficient to support the compelling interest in regulating the political contributions and express expenditures of foreign funders. The entanglement of foreign election activity with national security and foreign affairs, however, provides yet an additional reason it is appropriate for Congress to address this risk with broadly prophylactic remedies and why the Court should be extremely cautious about replacing its judgment for those of the elected branches in this area. Simply put, the Justices do not have the institutional capacity to investigate or assess the type of corruption risk posed by foreign financing of election-related activities or how to best remedy it, and should not attempt to do so.315 “Matters intimately related to foreign policy and national security are rarely proper subjects for judicial intervention.”316Haig v. Agee, 453 U.S. 280, 292 (1981). Instead, “[t]he Constitution primarily delegates the foreign affairs powers ‘to the political departments of the government . . . ,’ not to the Judiciary.”317 This is prudent, because “[d]ecisionmaking in this area typically is highly political” as well as “delicate” and “complex.”318 It also is necessary, because issues involving national security and foreign affairs often implicate “evolving threats in an area where information can be difficult to obtain and the impact of certain conduct difficult to assess.”319 Thus, while courts need not abdicate their “judicial role” in such cases, their relative “lack of competence” makes “respect for the Government’s conclusions . . . appropriate.”320

Foreign financing of election activity raises all of these concerns in abundance. Imagine a scenario in which a foreign national finances millions of dollars in expenditures in support of the election of a U.S. presidential candidate. The candidate wins and proceeds to make a series of decisions favorable to the financier’s country. Even if fully disclosed, how would the nation expose whether the President’s actions constituted the type of corrupt foreign entanglements that so concerned the founding generation? How would we know whether the financier was working, officially or unofficially, for a foreign government? Or where the financier got the money used to pay for the expenditures? Can we ask the President whether he made an implicit or explicit promise in exchange for the expenditures? Can we determine whether the actions taken toward the financier’s country were evidence of a quid pro quo or just things the President would have done regardless of the foreign expenditures? Can the President be forced to reveal conversations evidencing whether the expenditures were even in fact independent? More to the point, can we make the President, the State Department, the Joint Chiefs of Staff, or the CIA answer any of these questions, even in the rare situations where we know enough about the underlying scenarios to ask them?

As this Part illustrates, Congress and special investigators have struggled to get answers to questions like these, even when wielding the full power of the federal government and even when focused narrowly on specific acts of suspected corruption. The inability to do so, given the national security, foreign affairs, and executive privilege issues swirling around the questions they raised, is obvious. Congress was acutely aware of this when enacting the prohibitions. For instance, when enacting the original version of FARA, Congress stated that the law was necessary to “protect the national defense, internal security, and foreign relations of the United States.”321 This purpose was reaffirmed again in 1963, when chair of the Senate Foreign Relations Committee, Senator J.W. Fulbright (D-Ark.), noted the “increasing numbers of incidents involving attempts by agents of foreign principals to influence the conduct of U.S. foreign policy using techniques outside normal diplomatic channels,” and again in 1976, when Congress amended the act to include the current prohibitions, noting that “the statute is tinged with overtones of national security.”322Id. at 12, 131.

Experience has shown these concerns to be well warranted. The challenges inherent to investigating corruption in this context can be demonstrated by a review of three congressional efforts, spanning more than two decades, to use its investigatory powers to determine whether elected officials were corruptly influenced by specific incidents of foreign election activities.

A. The Inadequacy of Congressional Investigations

1. The Thompson Committee

The Thompson Committee issued its final report regarding the 1996 presidential election on March 10, 1998.323S. Rep. No. 105-167, pt.1 (1998). Its work, according to the final report, had been repeatedly stymied. It was unable to obtain information from the People’s Republic of China, or from purportedly cooperative witnesses—indeed, many of the individuals the Committee sought information from had left the country.324Id. at 16–17, 46. Others explicitly refused to cooperate, claiming a Fifth Amendment right against self-incrimination.325Id. at 46. Nonprofit entities defied subpoenas and made it otherwise impossible for the Committee to gather the information it sought.326 The Committee also faced challenges in tracing the source of the financing they were investigating, noting that the “[money] trails wend their way from foreign countries through one bank account after another, ending up mainly in DNC coffers.”327

Domestic actors hindered the Committee’s work as well. The final report accused the Clinton White House of “[s]low-walking” document production,328Id. at 4278. making broad claims of executive privilege,329Id. at 4281. and manipulating the timing of the release of the documents it did produce.330Id. at 4283–89. The Committee also reported that cooperation from some federal agencies was “spotty.”331Id. at 2501. In addition to these problems, the Committee was unable, because of national security reasons, to fully reveal to the public even that information it managed to compile.332Id. at 2501–02. To even describe the “gaps” in the Committee’s information, the report stated, could “lead to the inadvertent disclosure of certain sources and methods” used to obtain information about sensitive matters of foreign affairs.333Id. at 2501.

Given these concerns, the Committee felt compelled to conduct much of its investigation behind closed doors, because “[v]irtually all of the information gathered by the Committee was classified, much of it at top secret and compartmented levels.”334Id. It took further “extraordinary steps” of limiting access to the information it gathered, using secured facilities in its proceedings, and imposing numerous additional special restrictions on its work, as requested by U.S. intelligence agencies.335Id. The result, according to the Committee, was that, because of the “sensitivity of the subject, the Committee has been unable to share with the American people most of the documentary or testimonial evidence” supporting its conclusions.336Id. at 2502.

The Thompson Committee report thus demonstrates the extraordinary challenges even the U.S. Senate faces when attempting to investigate the possibility that foreign financing has corruptly influenced the actions of elected officials. More recent events, involving the presidency of Donald Trump, provide even more justification for judicial caution in this area.

2. The Mueller Investigation

On July 13, 2018, Special Counsel Robert S. Mueller, III charged Russian Intelligence actors—the Main Intelligence Directorate of the General Staff (GRU)—for stealing and releasing emails of U.S. citizens for the purposes of interfering with the 2016 presidential election.337 The indictment charged eleven named Russian GRU officers with knowingly and intentionally conspiring to “hack” into the computers of U.S. citizens and entities, stealing documents from those computers, and staging the release of the stolen documents to interfere with the election. Emails and documents stolen were from the DNC; the Democratic Congressional Campaign Committee; John Podesta, Chairperson of the Clinton campaign; and at least one congressional candidate (whose messages were shared with the candidate’s opponent).338Id. at 2, 15–16. The stolen documents also included Democratic strategy documents related to the presidential campaign, donor records, and personally identifying information of more than 2,000 Democratic donors.339Id. at 10–11, 16. The GRU then staged the release of the stolen documents on an online webpage that received more than one million page views before being shut down in March 2017.340Id. at 2–3, 6, 13–15, 17–19.

According to the indictment, at least one individual involved in these events was “a person who was in regular contact with senior members of the presidential campaign of Donald J. Trump.”341Id. at 16. Communications between the GRU-controlled accounts, “Organization 1,” and the individual in communication with the Trump campaign made clear that the stolen documents should be released strategically to harm Clinton. Communications between GRU-controlled accounts and the individual in contact with the Trump campaign included offers to help the campaign and discussions of the Democratic strategy documents.342 More than 50,000 stolen emails and documents were ultimately released between the lead-up to the Democratic National Convention and Election Day.343Indictment, supra note 337, at 6, 19. A declassified version of the Intelligence Community Assessment (ICA) examining these events, released on January 6, 2017, reported the ICA’s belief that “Russian President Vladimir Putin ordered an influence campaign” in the 2016 presidential election to “undermine public faith in the US democratic process, denigrate Secretary Clinton, and harm her electability and potential presidency.”344

A former director of the Federal Bureau of Investigation (FBI), Mueller was appointed by the U.S. Department of Justice (DOJ) as a special counsel to investigate. Mueller was given a broad mandate, including the power to investigate not just foreign interference in the 2016 election, but also any links or coordination between Russian actors and the Trump campaign.345 His final report (the Mueller Report) was released to the public in March 2019. He concluded that Russian actors, including Russian intelligence agents, financed and carried out a broad “active measures” campaign during the 2016 election.346Id. at 14. These efforts included purchasing express expenditures promoting Trump and disparaging his general election opponent, Hillary Clinton.347 Mueller also identified several links between the Trump campaign and the Russian government, and concluded that the campaign expected to benefit from information stolen and released as part of the Russian effort.348 Despite documenting numerous contacts between members of the Trump family and campaign team, including offers of campaign assistance that the Trump team was “receptive” to, Mueller did not establish that any of the individuals closest to Trump conspired or coordinated with the Russian government in these efforts, in part because of uncertainty about whether they had the requisite knowledge of the criminal conspiracy in which the Russians were engaged.349

As special prosecutor, Mueller had the full force and authority of the FBI at his disposal. Yet his investigation, like that of the Thompson Committee, was stymied by unavailable witnesses, claims of executive privilege, and transnational financial dealings.350 These challenges are evident throughout his final report, which is itself heavily redacted.351See 1 Mueller Report, supra note 345. Indicted foreign nationals remained (and still remain) beyond the reach of U.S. judicial process.352 Witnesses appear to have deleted relevant text messages,353 concealed evidence,354Id. at 187. and forgotten relevant details.355 Others, including individuals connected to the Trump campaign, made false statements to investigators or otherwise attempted to obstruct the special counsel’s work.356

Trump also engaged in apparent efforts to hinder the investigation. Investigators outlined in some detail the evidence of obstruction they had collected. This included Trump’s untrue statements about his ongoing business interests in Russia,357 his demand of “loyalty” from, and later firing of, the FBI director,358 his instruction to a subordinate to create a false record of his directions to his National Security Advisor regarding the NSA’s discussion with his Russian counterparts,359 and his urging of the Attorney General to “unrecuse” himself from the Russian investigation.360 Citing concerns about indicting a sitting president, the special prosecutor declined to make a prosecution recommendation regarding prosecuting Trump for obstruction of justice in relation to these actions, but nonetheless itemized them in the final report.361

Trump also seems to have misled the public about the course of events. He directed aides to not release emails related to a meeting between Trump associates and Russian nationals at Trump Tower, and, when the emails were released anyway, he edited a press release to obscure what was discussed at the meeting.362Id. at 5. He also again asked subordinates to create false records, this time regarding his efforts to remove the special counsel.363 He repeatedly reached out to potential witnesses to tell them to “stay on message,” “stay strong,” or adhere to the “party line.”364Id. at 6. When one witness nonetheless began cooperating with the investigation, Trump publicly denounced him as a “‘rat,’ and suggested that his family members had committed crimes.”365Id.

In the end, neither Trump nor any of his family members were criminally prosecuted for these events. Although the release of DNC and other stolen emails may be a “thing of value” as defined in federal election law, and therefore within the ban on foreign financing of election activity, the special prosecutor expressed uncertainty whether the information offered would meet the threshold value ($2,000) required by the statute.366 He also was unable to prove that those closest to Trump coordinated with foreign nationals to release the information, or that they “knowingly and willfully” violated the prohibition on soliciting or accepting foreign support (the standard necessary in this area for a criminal prosecution by the DOJ).367 Nor, of course, could the special prosecutor prove that Trump entered into a quid pro quo arrangement in exchange for the release of damaging information, despite significant concern about his pro-Russian, anti-NATO policies.368

3. The Ukrainian Impeachment Inquiry

All of these investigatory challenges, and more, arose again in 2020 when a whistleblower complaint alerted the House Intelligence Committee that Trump may have been withholding critical military aid to Ukraine, which was battling growing Russian aggression in its territory.369 The Ukrainian scandal irrupted in 2020, culminating in Trump’s first impeachment.370 According to the House Impeachment Inquiry Report, Trump engaged in a “months-long effort . . . to use the powers of his office to solicit foreign interference on his behalf in the 2020 election.”371H.R. Rep. No. 116-335, at 1 (2019).

The underlying accusations are now well known. Volodymyr Zelensky was elected president of Ukraine in 2019, largely on an anti-corruption platform.372Id. at 6. Zelensky’s victory was seen as a win by U.S. foreign policy experts, who believed it was in the U.S. national security interests to support Zelensky’s efforts to combat corruption and counter Russian aggression in the region.373Id. at 8–13. Congress shared this view, and had appropriated funds to support the Ukrainian armed forces.374 Zelensky’s team also had been engaged with the White House since his election to coordinate a White House visit to showcase U.S. support for Zelensky and his new administration. Trump, however, had come to believe that Ukrainians (rather than Russians) were behind the foreign interference in the 2016 elections, and that they had worked on Hillary Clinton’s (rather than his) behalf. This interpretation of the evidence had been rejected by the U.S. intelligence community, but continued to be a mainstay of various online conspiracy groups.375See id. at 88–89. Trump purported to believe that proof of this pro-Clinton intervention could be found on a DNC server that had been hidden in Ukraine.376Id. at 17. Finally, he believed he could make political hay out of the involvement of Joe Biden’s son, Hunter Biden, with a Ukrainian company called Burisma Holdings, Ltd. Biden was at the time the likely Democratic nominee for the 2020 presidential election, and the work of his son on the Burisma board had, like the DNC server, become a focus of Trump’s campaign.377Id. at 3–4.

Trump’s response to this confluence of events, according to the House Impeachment Report, was to ask Zelensky for “a favor.”378Id. at 2. Against the advice of his own national security and foreign relations teams, Trump purportedly conditioned both a White House visit and release of military assistance to Ukraine on Zelensky publicly announcing that he had initiated an investigation into Hunter and Joe Biden, as well as the alleged Ukrainian interference in the 2016 election.379 According to an unclassified readout of a phone call between Trump and Zelensky shortly after Zelensky’s election, Trump began by congratulating Zelensky on his election victory, repeatedly emphasizing how “good” the United States has been to Ukraine. When Zelensky raised the issue of U.S. military support, however, Trump responded by saying “I would like you to do us a favor though,” and then proceeded to ask Zelensky to work with Trump’s personal attorney, Rudy Giuliani, to “get to the bottom” of the DNC server and Hunter Biden issues. Trump advisors involved in negotiating with Ukraine during this time period later confirmed that their understanding of this comment was that the White House visit, and perhaps the security assistance, would be contingent on Zelensky publicly announcing an investigation into Biden.380

In other words, as summarized by the Impeachment Inquiry Report, Trump was “withholding official acts,” such as the White House visit and release of the security funding, “while soliciting something of value to his reelection campaign—an investigation into his political rival.”381Id. at 5. But like earlier efforts, the House committee’s ability to explore the matter, however, was repeatedly hindered. Trump, according to the House Inquiry Report, “engaged in an unprecedented campaign of obstruction” of its inquiry. Claiming sweeping executive privilege, Trump ordered all federal agencies and officials to disregard requests for information from the congressional committee, including duly issued subpoenas.382 The White House never produced any documents to the House investigators despite investigators’ belief that numerous responsive documents existed. At the President’s instruction, the Secretaries of State, Defense, and Energy likewise refused to cooperate with Congress’s efforts to investigate the alleged presidential corruption.383Id. at 200–22.

The President also attempted to prevent members of Congress from accessing the whistleblower complaint. Under federal law, whistleblower complaints are reviewed by the Inspector General to determine if they appear credible. If so, they are to be promptly disclosed to the chairs of the relevant congressional committees, in this case, the intelligence committees. Upon receiving the whistleblower complaint about the purported withholding of official acts for political favors, the Inspector General concluded that the complaint raised a credible matter of “urgent concern.” Despite this, the complaint was, at the request of the DOJ, withheld from the appropriate members of Congress on the unprecedented grounds that it contained “potentially privileged communications by persons outside the Intelligence Community.”384 The efforts to prevent public disclosure of the President’s actions did not end there, however. Throughout the House Committee’s investigation, Trump repeatedly broadcast, through his Twitter account, attacks, ridicule, and threats of retaliation against individuals cooperating with the investigation.385Id. at 31. The President also appeared to threaten the whistleblower and those who cooperated with them, suggesting they should be severely punished for their “treason.”386 According to the House Impeachment Inquiry Report, the sitting President made more than 100 public statements regarding the whistleblower during the course of just two months.387Id.

The whistleblower and other cooperating witnesses were not, of course, the only people fearful of the President’s wrath: President Zelensky also had reason to be cautious. Throughout the ordeal, he and his aides reportedly expressed repeated discomfort at becoming a pawn in U.S. domestic politics, yet he appeared in the end prepared to conduct an interview with CNN announcing the Biden and Burisma investigations, in order to secure the desperately needed security assistance and White House visit.388 As Lieutenant Colonel Alexander Vindman testified before the House impeachment committee, Zelensky had little choice, given that he was dependent on support from the United States:

So, Congressman, the power disparity between the President of the United States and the President of Ukraine is vast, and, you know, in the President asking for something, it became—there was—in return for a White House meeting, because that’s what this was about.

. . . .

. . . [It] was “inappropriate.”389Id. at 92–93.

As the Supreme Court recognized more than 100 years ago in upholding the Hatch Act, it is easy to see in such situations “that what begins as a request may end as a demand.”390 More to the point for current purposes, whether or not it is a demand will frequently be impossible to prove. If foreign actors are empowered to make expenditures to promote the election or defeat of candidates for public office, how, given the extraordinary web of power and secrecy surrounding national security and foreign affairs, would the public ever know if an improper quid had been promised for a foreign financed quo? In such circumstances, judicial deference to the judgment of Congress that a prophylactic approach is necessary to lessen the temptation of such corruption by prohibiting all foreign financing of election-related activity is more than warranted.391

B. The Risk of Corruption at the State and Local Level

Nor is this risk limited to the office of the President or, indeed, even federal office seekers. James Madison, explaining the purpose of the Guarantee Clause (which guarantees to every state in the union a “republican” form of government) noted that state governments, not just the federal government, could be vulnerable to the “secret succors from foreign powers.”392 Writing for the D.C. District Court in Bluman, Judge Kavanaugh also recognized this connection, citing to Harisiades v. Shaughnessy in which the Court determined that “any policy toward aliens is vitally and intricately interwoven with” not only “foreign relations[ and] the war power, [but also] the maintenance of a republican form of government” at home.393

More recent events, once again, demonstrate the validity of these concerns. In just the past few years, federal investigators revealed several foreign entanglements on the part of congressional, state, and local elected officials. In 2022, the FEC entered into a settlement in which a congressional candidate from Rhode Island acknowledged that he knowingly solicited campaign assistance from individuals he associated with Russian intelligence. Specifically, he sent a Twitter message to a Russian agent stating, “I could use your help to defeat [my general election opponent,] cicilline.”394 The agent replied, “it seems [I] have a dossier on cicilline . . . I can send [yo]u a dossier via email.”395Id. (second alteration in original). The candidate promptly provided his email, and received the dossier, apparently generated from stolen computer files.396Id.

This was not an isolated incident. In July 2022, the DOJ indicted a Russian national working on behalf of the Russian government for allegedly orchestrating a years-long influence campaign using U.S. political groups to sow domestic discord and interfere in U.S. elections, including groups in Georgia, Florida, and California.397 A Russian oligarch was indicted for breaking campaign finance law in relation to his support for a gubernatorial candidate in Nevada, and remains at large in Russia.398 An associate of former New York City Mayor Rudy Giuliani pleaded guilty in 2021 for illegally soliciting foreign campaign contributions for Democratic and Republican candidates in furtherance of his U.S.-based business interests.399 A former House member from Nebraska was convicted in 2022 of concealing information about and making false statements to the FBI regarding illegal foreign contributions to his campaign.400 Even the Thompson Committee report recognized these types of activities, noting illegal foreign contributions made to a California congressman,401 and the involvement of a mayor in connecting the Clinton White House with a foreign businessman considering locating a factory in the mayor’s city.402Id. pt. 3, at 4472. If there is ever a place for judicial deference to the considered judgment of Congress about what poses an unacceptable risk of quid pro quo corruption, surely it is here.403

C. Bright Lines and Overbreadth

As the Court has explicitly found in relation to contribution limits, a broad rule is constitutionally permissible as a preventative measure even when most individual acts subject to the rule will not themselves carry a risk of quid pro quo corruption.404 As the Court held in Buckley:

Appellants’ first overbreadth challenge to the contribution ceilings rests on the proposition that most large contributors do not seek improper influence over a candidate’s position or an officeholder’s action. Although the truth of that proposition may be assumed, it does not undercut the validity of the $1,000 contribution limitation. Not only is it difficult to isolate suspect contributions, but, more importantly, Congress was justified in concluding that the interest in safeguarding against the appearance of impropriety requires that the opportunity for abuse inherent in the process of raising large monetary contributions be eliminated.

. . . Congress’ failure to engage in such fine tuning does not invalidate the legislation.405Id.

The Supreme Court cited this language approvingly in McCutcheon, adding that the Buckley Court found the contribution limit was not overly broad because “it was too ‘difficult to isolate suspect contributions,’” and because “Congress was justified in concluding that the interest in safeguarding against the appearance of impropriety require[d] that the opportunity for abuse” be eliminated.406

In Buckley and McConnell, of course, the Court was analyzing the overbreadth of contribution limits, but as the above examples illustrate, this contextualized approach is even more appropriate in regard to foreign funding bans than it is in regard to domestic contributions. Senator Thompson, Special Prosecutor Mueller, and the House Impeachment Inquiry Committee regarding Ukraine held all the investigatory power of their offices and were charged with investigating specific, known events. Yet their work was repeatedly stymied. Public officials, including U.S. presidents, used the powers of their office to limit their access to people and documents and to bully witnesses. Foreign entities fled beyond the jurisdiction of domestic investigators. Intelligence agencies refused to share sensitive data or did so in ways that prevented the information from being disclosed to the broader public.

Some of these actions were likely appropriate, given the national security and foreign affairs issues in play. Others, undoubtedly, were not. We, the public, cannot know. That is precisely why a prophylactic remedy is appropriate here. Proving the presence of a quid pro quo exchange under such circumstances will rarely be possible and will always be costly. More fundamentally, if foreign financing of election activity was not illegal, there would be even fewer tools available to investigate potentially corrupt exchanges, and we would have even less ability to hold our public officials to account for their undemocratic actions.

Conclusion

In Bluman v. FEC, the court held that foreign nationals could be prohibited from making even independent expenditures because such expenditures risked inappropriately influencing the choices made by American voters. The result in Bluman is correct, but the court’s reasoning is wrong. Foreign financing bans are constitutional not because foreign speech may “inappropriately” influence voters, but for the same reason all successful restrictions on political speech are constitutional: because of the risk they pose to the appearance or actuality of corrupting the conduct of public officials. The sense of indebtedness or ingratiation independent expenditures can induce in elected officials may be a contextually appropriate part of responsive self-government when done by domestic actors but has no place in the interactions between elected officials and foreign financiers and is well within the power of Congress to prevent.

Our founders understood this, as did the members of Congress who enacted FARA, FECA, and BCRA. The challenges faced by investigators trying to untangle the web of national security, foreign affairs, and executive privilege issues that will inevitably spin around accusations of corrupt activities tied to foreign financing amply demonstrate their collective wisdom. The Supreme Court has long recognized that the judiciary is the branch least suited for dealing with problems such as these and should respect the choices of our elected representatives to address them by enacting appropriately prophylactic measures in this complex area of contextualized corruption.

* J. Alton Hosch Professor of Law and Josiah Meigs Distinguished Teaching Professor, University of Georgia School of Law. Thanks to Richard Briffault, Benjamin Cover, Joshua Douglas, Jacob Eisler, Atiba Ellis, Anthony Gaughan, Eugene Mazo, and participants at the Southeastern Association of Law School’s 2022 Election Law Workshop. Thanks also to Stephen Wolfson, Wendy Moore, and the University of Georgia School of Law library staff, and to Cole Harper and Andrew Wilson for their excellent research assistance.