Alito Was Right

No, the Supreme Court did not open the door for foreign involvement in U.S. elections.

On Jan. 21, the U.S. Supreme Court found in Citizens United v. Federal Election Commission that corporations could make unlimited independent expenditures advocating the election or defeat of a federal candidate. This decision overruled two prior Supreme Court opinions and a law that dates back more than 60 years. It remains illegal for corporations to make direct or coordinated contributions to or on behalf of federal candidates or political party committees.

Aside from the implications of unlimited corporate spending in the political process, a spectacular sideshow has erupted regarding political activities by foreign corporations and their domestic subsidiaries. The sideshow was fueled by President Barack Obama's claim during his State of the Union address that foreign corporations can "spend without limit in our elections." Justice Samuel Alito, sitting in front of the president, mouthed on national television that such a claim was "not true." President Obama or Justice Alito: Who is right? Let's take a look at the law.

The Federal Election Campaign Act provides that foreign nationals shall not directly or indirectly make contributions, donations, expenditures, independent expenditures, or disbursements for electioneering communications. This prohibition, subject to criminal and civil penalties, covers individuals and corporations financing any federal, state, or local election.

During oral argument, Justices Ruth Bader Ginsburg and John Paul Stevens asked whether foreign interests would be able to funnel money into U.S. elections through their domestic subsidiaries if the court struck down the prohibition on corporate spending, as it did. One of the attorneys for Citizens United equivocated in his response by not ruling it out. Such equivocation during oral argument, in an exchange between the justices and counsel, has no legal effect. The opinion itself is all that carries weight, and the opinion does not upset the longstanding prohibition on foreign money in U.S. elections. In fact, perhaps because of that exchange during oral arguments, the court specifically stated it was not addressing the ban on foreign contributions, recognizing that contributions and expenditures by foreign individuals and associations are banned in a distinct section of the law.

While I disagree with the court's decision because unlimited corporate spending is politically harmful to the system, there is nothing in the Citizens United case that provides a legal channel for foreign corporations or individuals to spend money in U.S. elections.

Specifically, the White House's concern seems to focus on contributions and other political activities by corporations that are foreign-owned U.S. subsidiaries. This type of ownership arises in every industry in the United States, from the largest banks, energy companies, pharmaceutical companies, defense contractors, and even alcoholic beverage manufacturers. These domestic subsidiaries have contributed to federal candidates through political action committees (PACs) for decades and have made direct corporate contributions and expenditures in the 28 states that allow corporate funding of elections. However, as a matter of federal law, it has been illegal for any of these entities to funnel foreign corporate funds through domestic entities or to have foreign officers, directors, or employees direct foreign or domestic funds with regards to federal, state, or local elections. Such conduct, if willful, would constitute a felony and potentially carry a lengthy term of incarceration. The Citizens United case did not upset that law. It is possible for a new case to be brought asking for the court to rule on these restrictions. However, that is not the Citizens United case.

So, in short, Alito mouthing the words "not true" in response to Obama's claim of the court having opened the door to foreign money, while questionable as a matter of protocol, is legally correct. Just because the court ruled to allow more corporate spending in elections does not mean that foreign-owned corporations will start breaking the law and finding devious ways around the prohibitions.

If foreign-owned entities were so inclined, they could have been doing so with unlimited contributions in state elections, in states like Virginia, Oregon, Nebraska, Missouri, and Utah. Foreign corporations that own domestic subsidiaries with PACs could have been diverting PAC contributions at the foreign parent's direction. There is no evidence of this conduct currently. Why would they start violating the law now?

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The Peace Deal Obama Should Be Making

With its Middle East negotiations going nowhere, the United States should seize the chance to make a historic agreement with North Korea.

In what Pyongyang's state media billed as a "military drill," North Korea fired artillery shells near its disputed border with South Korea last Wednesday and Thursday. South Korea responded by firing its Vulcan cannons into the air -- a sign, according to the South Korean press, that Seoul would not give in to intimidation. The incident made global headlines, even though these skirmishes near the Northern Limit Line dividing the countries in the Yellow Sea, which is not recognized as a legitimate border by North Korea, have been ongoing for years. If U.S. President Barack Obama wants to resolve once and for all the situation on the Korean Peninsula, he's going to have to take an unexpected approach to solving the underlying problem: pushing at last for a formal end to the Korean War.

North Korea has made its position clear: It wants a treaty to supplant the nearly 57-year-old armistice agreement that ended the war. North Korean officials, of course, have floated the idea before, only to be turned down flat by previous U.S. administrations. But no moment has ever been so auspicious for a treaty. Signing one now, politically difficult as it could be for Obama, could also be the smartest way to end the standoff in northeast Asia and resolve the North Korean nuclear issue for good.

A peace treaty with North Korea would need to be based on a quid pro quo: North Korea's denuclearization in exchange for the accord. The United States, North and South Korea, and China would sign the treaty immediately, but it would not become permanent until Pyongyang denuclearized within a reasonable time -- say, 12 months. If Pyongyang failed to denuclearize, the treaty would become void. It is in Pyongyang's short- and long-term interests to make certain that a conditional peace treaty becomes permanent.

Of course, any treaty with official "axis of evil" leader Kim Jong Il, as former U.S. President George W. Bush dubbed North Korea, will be a tricky feat to pull off given conservative opposition in the United States, as well as among U.S. allies in Asia. Critics of the notion contend that North Korea neither intends to forsake its nuclear weapons capabilities nor its nuclear weapons, regardless of any agreements it signs. Rather, they say, Pyongyang is committed to achieving international recognition as a nuclear weapons state.

But the evidence tells a much different story. Although the six-party nuclear talks have certainly not been problem-free, they have achieved some limited successes -- sometimes because of bilateral discussions between Washington and Pyongyang. In the joint statement that came out of the September 2005 six-party talks, Pyongyang committed North Korea to denuclearization. Besides disabling a sizable amount of its nuclear weapons capabilities, Pyongyang submitted its nuclear declaration, as required, to Beijing in June 2008 and shortly thereafter blew up its cooling tower at its Yongbyon nuclear facility. By July 2008, Pyongyang had disabled about 80 percent of North Korea's nuclear weapons capabilities at Yongbyon, though this progress was subsequently reversed following a verification dispute with Washington.

Still, North Korean representatives have stated on more than one occasion -- including to this author in Pyongyang in January 2009 -- that North Korea would have no need for nuclear weapons if the United States did not maintain a hostile policy toward their country. When U.S. envoy Stephen Bosworth, who is leading U.S. efforts at engagement with North Korea, visited Pyongyang in December, North Korean officials reaffirmed their commitment to the 2005 joint statement on denuclearization. A joint editorial published on New Year's Day by North Korea's three major state-controlled newspapers speaks of Pyongyang's desire to create "a lasting peace system on the Korean Peninsula and make it nuclear-free through dialogue and negotiations." And just last week, Pyongyang again stated that its goal is to denuclearize the Korean Peninsula.

During Bosworth's recent trip to Pyongyang, North Korean officials made clear their desire to sign a peace treaty. Pyongyang has even prioritized the signing of a peace treaty, which it sees as a confidence- and trust-building mechanism, ahead of normalized relations with the United States, reasoning that normal bilateral relations with Washington will naturally follow a peace accord. In addition to allaying its concerns about a hostile U.S. policy, a peace accord would give North Korea international, legally binding assurance that its sovereignty would not be violated, something it values over all else.

North Korea also has pressing economic reasons for pursuing a treaty. Pyongyang wants to grow its struggling economy, and with a peace treaty, the international sanctions imposed on North Korea would likely be lifted. Furthermore, eventual rapprochement with the United States represents North Korea's ticket to funds from international lending institutions such as the World Bank and the International Monetary Fund. A decrease in regional tensions could also open the door to international assistance from Japan and increased economic cooperation with South Korea -- a precursor to the reunification of the Korean Peninsula.

In return for denuclearization, North Korea will probably insist that the United States verify that the Korean Peninsula is free of U.S. nuclear weapons and that there be some reduction of U.S. troops in South Korea. But, with a conditional treaty in place, Washington can easily answer these concerns.

The signing of a peace treaty would put an end to one of Asia's most intractable conflicts and allow Obama to reclaim the mantle of hope and change that inspired the world during his election campaign. Obama still has nothing to show for his winning of the Nobel Peace Prize last year -- indeed, he himself has recognized that the award was given in anticipation of what he will accomplish. Signing a peace treaty to end the Korean War is relatively easy to accomplish because this is exactly what Pyongyang is calling for and would represent a definitively new approach to U.S. foreign policy that would distinguish him from his predecessor.

For the United States, a conditional peace treaty is largely risk-free -- and should not be tied to human rights issues in North Korea. Critics often charge that the Pyongyang regime is a menace to its people, but the human rights issue is a separate matter and bringing it up now would only considerably delay -- or perhaps eliminate -- prospects for denuclearization.

Obama's approach has been wrongheaded up until now, prioritizing North Korea's return to the six-party talks when he should be focusing on denuclearization. It matters little how denuclearization takes place -- what matters is that it occurs, whether by relying on the six-party framework, bilateral discussions between Washington and Pyongyang, negotiations for a peace treaty, or some combination of these.

A conditional peace treaty that becomes permanent accomplishes Washington's objective, which is to denuclearize North Korea. At the same time, a peace treaty satisfies Pyongyang's criterion of "action for action" -- the signing of a permanent peace treaty, which it wants, but only after denuclearization. This is win-win diplomacy: a chance for the United States to make progress in removing a nuclear threat and facilitating the unification of the Korean Peninsula. Obama should seize the opportunity.

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