WASHINGTON, D.C.—The Federal Election Commission (FEC) split 3-3 on whether to investigate multinational corporation Manwin's (now MindGeek) donation, through two of its subsidiaries, of $327,000 to defeat the AIDS Healthcare Foundation's forced condom/barrier protection ordinance, Measure B. The split, with three Democrats voting for the investigation and three Republicans voting against, means that the FEC will not conduct the investigation.
Federal election law generally prohibits "foreign nationals" from making "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," and also prohibits "an expenditure, independent expenditure, or disbursement for an electioneering communication," which means that foreign money can't even be used to create advertisements whose intent is to influence an election.
However, that was before the U.S. Supreme Court's 2010 decision in Citizens United v. Federal Election Commission, which removed monetary limits on the "campaign speech" of corporations—a move about which then-Supreme Court Justice John Paul Stevens opined in his dissent in Citizens United that, "If taken seriously, our colleagues' assumption that the identity of a speaker has no relevance to the Government's ability to regulate political speech would lead to some remarkable conclusions. Such an assumption would have accorded the propaganda broadcasts to our troops by 'Tokyo Rose' during World War II the same protection as speech by Allied commanders. More pertinently, it would appear to afford the same protection to multinational corporations controlled by foreigners as to individual Americans: To do otherwise, after all, could '"enhance the relative voice"' of some ( i.e., humans) over others ( i.e., nonhumans)."
Hence, in light of Citizens United, it's difficult to tell where Title 2 of the U.S. Code now stands regarding foreign contributions to elections—but the FEC's Republicans apparently figured they could split that baby by taking the position that since Measure B was not a national election, the restrictions of Title 2 did not apply. The Commission's Democrats, on the other hand, wanted to look into the contributions and possibly fine the anti-Measure B No to Government Waste Committee for accepting the contribution.
"Imagine, for example, a foreign billionaire who was dissatisfied with U.S. immigration policy and decided to try to change it more to his own liking, one statewide ballot measure at a time," Democratic Commissioner Ellen Weintraub told the Reuters News Agency.
That concern was shared by Craig Holman of the reform group Public Citizen, who feared that the Commission's decision could further open the door to foreign influence over American elections.
"The 'dark money' phenomenon that has flooded elections since the 2010 Citizens United decision has made it easy for foreign interests to secretly launder money into candidate elections," Holman said. "The unwillingness of the FEC to enforce the law in ballot measure campaigns, even when the influence of foreign money is in the open, makes our elections open season for foreign intervention."
Meanwhile, there has been no forward movement for several months in the lawsuit against Measure B filed by Vivid Entertainment Group and performers Kayden Kross and Logan Pierce. The decision by a Ninth Circuit Court of Appeals panel regarding several pre-trial motions filed by both Vivid and lawsuit intervenor AIDS Healthcare Foundation back in December should have set the stage for trial on the issues to begin, but at this point, no trial date has been set.
