A decade after the U.S. Supreme Court decision in Citizens United substantially altered how money flows into American politics, cities are making their own impact on the landscape. In a deft but surprising use of election regulations, recently passed laws may prove that the SCOTUS ruling may create an innovative positive for democracy.
Ten years ago, on January 21, 2010, the Citizens United ruling enabled the shift of political spending to outside groups such as super PACs and other “dark money” political nonprofits, after finding restrictions on independent expenditures violated the Constitution. The influx of money flowing around campaigns to influence potential voters has been substantial, with over $4.5 billion in spending from groups not directly associated with the campaign or party, and almost a billion dollars in spending from groups that don’t disclose their donors.
During the same time, we’ve also seen an increase in the means and mechanisms that state-sponsored actors are attempting to influence our elections. At this point, it is well documented that Russia played a role in the 2016 elections. And, in October of 2018, U.S. intelligence agencies warned that other countries may look to also influence our elections. As James Lewis, a cybersecurity expert at the Center for Strategic and International Studies in Washington, told The Guardian, “Unfortunately, it’s not just Russia any more. In particular, China, Iran, a couple of others, studied what the Russians did in 2016.” And, we know that the efforts by these state entities isn’t limited to just presidential campaigns. In fact, in the summer of 2019, the Senate Intelligence Committee concluded that the election systems of all 50 states were targeted by Russia in 2016, and in 2018, several county elections were targeted. Which means, every election is at risk from foreign interference.
Yet, cities have innovated, and at least two have passed laws that leverage Citizens United to fight foreign money from flowing into local elections.
Specifically, the Federal Election Commission has laws that clearly state that campaign contributions from foreign nationals are barred in any election at any level, from presidential to the town’s dog catcher (should that be an elected position). The language, unlike some laws, is pretty unambiguous: it is unlawful for “a foreign national, directly or indirectly, to make a contribution or donation of money or other thing of value, or to make an express or implied promise to make a contribution or donation, in connection with a federal, state or local election.”
The intersection between Citizens United and foreign interference has allowed cities like St. Petersburg, Florida, and most recently Seattle, Washington, to pass laws protecting their local elections. It all started in October of 2017, when the City of St. Petersburg City Council became the first municipality to limit foreign corporate spending in local elections by passing, by a 6-2 vote, a city ordinance limiting foreign owned corporations from spending money in local elections. Specifically, the ordinance requires corporations that spend money in St. Petersburg elections to certify they are not foreign-influenced, or owned in whole or a significant part by foreign entities.
Seattle continued the trend, passing in January of 2020 a ban on foreign-influence through corporate campaign contributions, which would apply to corporations with a single non-American investor holding at least 1% ownership, two or more non-American investors holding at least 5% or a non-American investor participating in decision making related to American political activities. The city will now require corporations spending on Seattle candidate elections to certify themselves as not being foreign influenced.
The idea may sound controversial, especially in light of the broad reading of Citizens United. However, the initiative has found widespread support. Recently, Ellen L. Weintraub, a commissioner on the Federal Election Commission, wrote that “No court has ever come close to holding that the Federal Election Campaign Act’s ban on political spending by foreign nationals is improper.” And that, “If even a very conservative Supreme Court is asked to rule that the government is powerless to stop hostile foreign interests…”
And, according to John Bonifaz, the Co-Founder and President of Austin-based Free Speech For People, “With the passage of this model law, Seattle is helping to lead the way in the fight to prohibit foreign-influenced corporate spending in our elections. Other cities should now take up this fight. Foreign interests must not be allowed to use the corporate form to undermine the integrity of our elections and the fundamental principles of American self-government. The sweeping reform Seattle has enacted ought to inspire cities across this country to join in this movement to protect our democracy.”
The importance of ensuring our elections, on all levels remain free of foreign interference is a fundamental requirement of our democracies. As Alexander Hamilton wrote in No. 68 of The Federalist Papers, “The desire [of] foreign powers to gain an improper ascendant in our counsels” was “one of the most deadly adversaries of republican government.”
Cities have shown us the ways to ensure our elections can, in fact, regulate foreign interference in elections. As Austin continues to grow into our role as a global leaders, we, as residents, deserve to know that our elections will be free from foreign influence. It is up to us and our elected officials, to pass a similar piece of legislation, and show that cities are in fact leading the innovation of democracy around the world.
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