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Tuesday, January 18, 2022

OPINION:

Do U.S. election laws need reform? Yes. But not the misguided reforms being pushed by Senate Majority Leader Charles E. Schumer, New York Democrat.

While federal law bars foreigners from participating in U.S. elections, it does not keep them from influencing referenda and issue-based ballot measures. That’s a problem Congress should fix.


The Federal Election Campaign Act bars foreign governments, entities and individuals from contributing “directly or indirectly” to — or on behalf of — candidates and political parties “in connection with a Federal, State, or local election.”

Moreover, no person — such as a congressional or mayoral candidate — is allowed to “solicit, accept, or receive a contribution or donation … from a foreign national.” Only permanent resident aliens are exempt from this prohibition.

This ban has been upheld repeatedly by the courts. As the Supreme Court said in 1978 in Foley v. Connelie, “a State’s historical power to exclude aliens from participation in its democratic political institutions [is] part of the sovereign’s obligation to preserve the basic conception of a political community.”

In other words, “the government may reserve” participation in the democratic political process to U.S. citizens.

The problem arises from the definition of “election” in federal law. In 1995 in McIntyre v. Ohio Elections Commission, the Supreme Court concluded that this definition “regulates only candidate elections, not referenda or other issue-based ballot measures.”

Since then, the Federal Election Commission has consistently followed the court’s definition, most recently in an enforcement action involving a Canadian subsidiary of an Australian company over its involvement in a 2018 ballot referendum in Montana.

The referendum, which would have imposed new requirements for hard-rock mine permits, was defeated.

The Canadian company made campaign contributions to the Montana Mining Association and another political action committee that was opposing the initiative.

The FEC dismissed a complaint filed against the company for supposedly violating the federal ban on foreign donations because the donations were made in an election involving a ballot referendum, not a candidate.

There seems to be almost universal agreement that foreigners should not have a role in the U.S. electoral process, whether it is in electing our representatives at the local, state, and federal levels or in deciding ballot issues that affect how and to what extent state and local governments exercise their power over citizens.

As the Supreme Court said in 1982 in Cabell v. Chavez-Salido, the “exclusion of aliens from basic governmental processes is not a deficiency in the democratic system but a necessary consequence of the community’s process of political self-definition.”

Since foreigners are barred from voting in all federal and state candidate elections, as well as in referenda, there is no reason to allow them to participate by trying to influence the votes of citizens and the outcomes of elections on those same issue-based ballot measures by contributing money to support or oppose them.

The same rationale for preventing foreign nationals and particularly foreign governments from interfering with the choices made by U.S. citizens voting in elections for president, Congress, state legislatures, and other state and local offices applies to referenda and issue-based ballot measures.

Those votes affect the personal and professional lives and economic opportunities of citizens and the power of local government to regulate. Federal law needs to be amended to extend the federal ban to all elections involving referenda and issue-based ballot measures to prevent foreign interference and intrusion into our democratic process.

Congress should act accordingly.

Hans von Spakovsky is a senior legal fellow at the Heritage Foundation and a former commissioner on the FEC. His new study, “Barring Foreigners from Participating in Referenda Elections,” is available at heritage.org.


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