A series exploring how money from abroad has entered the 2016 presidential election thanks to Citizens United.
Six days after the Supreme Court lifted restrictions on corporate money in U.S. elections with its January 21, 2010, ruling in Citizens United, President Obama warned in his State of the Union address that it would “open the floodgates for special interests, including foreign corporations, to spend without limit in our elections.”
But as unlimited contributions have coursed through the election system, no one has been able to point to a specific example of foreign money flowing into U.S. presidential politics as a result of the Supreme Court’s decision.
The Intercept has determined that a corporation owned by a Chinese couple made a major donation to Jeb Bush’s Super PAC Right to Rise USA — and it did so after receiving detailed advice from Charlie Spies, arguably the most important Republican campaign finance lawyer in American politics.
As Robert Weissman, president of the nonprofit advocacy organization Public Citizen, said, “We know that Citizens United opened the door for foreign money to influence U.S. elections. This case appears to be the first instance in federal elections where the money trail is clear and documentable from publicly available records.”
Spies presented his advice in a memo, obtained by The Intercept, which he prepared for Right to Rise USA, where he served as treasurer and general counsel. “We conclude,” he wrote, “that a domestic subsidiary corporation may now directly contribute to a Super PAC in connection with a federal election.”
The Spies memo was dated February 19, 2015. One month later, American Pacific International Capital Inc., a California corporation owned by Gordon Tang and Huaidan Chen, a married couple who are citizens of China and permanent residents of Singapore, made a $1 million donation to Right to Rise USA. APIC subsequently gave the group an additional $300,000, its total donation of $1.3 million making APIC one of the Bush Super PAC’s largest contributors.
APIC had, quite literally, gotten the memo.
In an interview, Wilson Chen, Huaidan Chen’s brother and president of APIC in 2015, compared APIC’s political donations to the Chinese tradition of gong cha, or paying tribute to the emperor. Chen repeatedly emphasized that APIC “did not want to do anything illegal” and made the donations with the guidance of the Spies memo and the company’s own in-house lawyer.
It’s not clear, incidentally, that APIC followed Spies’s memo to the letter. Spies warned that foreign owners could not be involved in the decision-making process for political contributions by their U.S.-based companies. But based on statements Gordon Tang and Wilson Chen both made to The Intercept, Tang may have crossed this line by authorizing the Right to Rise USA donation from APIC.
In any case, for campaign finance experts, Spies’s roadmap provides compelling evidence of a phenomenon many already suspected was well-entrenched. “Spies’s memo is an explicit how-to guide for foreign nationals to get money into U.S. elections through U.S.-based corporations that they own,” said Paul S. Ryan, deputy director of the campaign finance watchdog organization Campaign Legal Center. “It shows that although Obama was attacked in public for misleading Americans about Citizens United, in private people like Spies and others like him seemingly realized that Obama was right and set to work making his prediction a reality.”
Reached for comment by phone, Spies stated that the memo had been prepared “to ensure compliance with the law,” but he declined to say anything further about the circumstances leading to its writing or about APIC itself.
When asked whether Obama’s remarks in 2010 were vindicated by his memo, Spies grew agitated. After a short discussion, he said, “I don’t think there’s any point in our continuing this conversation,” and then abruptly hung up the phone.
The story of APIC captures the bizarre reality of the U.S. political system: George H.W. Bush and George W. Bush between them appointed three of the five members of the Supreme Court’s Citizens United majority; this majority opened up a loophole allowing foreign money to flow into U.S. elections; and this loophole was used to grab foreign money in an attempt to make a third Bush president.
Whether this loophole will continue to exist may largely depend on the outcome of the 2016 presidential race. The Democratic Party has lambasted the Supreme Court’s decision in its campaign rhetoric, and Hillary Clinton has promised to call for a constitutional amendment to overturn Citizens United in her first 30 days as president.
Gordon Tang and Huaidan Chen, now in their late 40s, have over the past several decades built a business empire largely based in Asia but with some branches in the United States.
The couple are the majority shareholders of SingHaiyi, a publicly traded Singapore-based corporation with a market value of about $250 million. SingHaiyi describes itself as “a diversified real estate company” owning condominiums and commercial property in Singapore, Malaysia, and the U.S.
Tang began his career in the 1990s, developing a large distribution network for duty-free goods. According to a SingHaiyi corporate disclosure, in the early 2000s, “leading trade importers and their staff” in the southeastern Chinese city of Shantou, including Tang’s trading businesses and Tang himself, were investigated by the Chinese authorities over “custom matters.” While “many in Shantou [were] convicted,” the disclosure states, including individuals “who were staff in Mr. Tang’s import and export business,” in the end Tang himself faced “no penalties or convictions imposed by the Chinese courts.”
When contacted by Elaine Yu, a Hong Kong-based journalist and contributor to this series, Tang offered to give her 200,000 dollars in an unspecified currency (Hong Kong and Singapore both denominate their money in dollars) if The Intercept did not reference unverified claims on Chinese-language websites that he had been accused of criminal activity.
Though Tang was most concerned about the resurfacing of these old rumors, which arose out of the government investigation into his trading businesses in China, they are actually far less pertinent to this story than his ownership of the U.S.-based APIC. According to a 2016 corporate filing by APIC, it is wholly owned by another corporation, “Jag Pacific Ltd.,” which appears to be incorporated in the Bahamas. But whatever Jag Pacific’s provenance, a 2012 SingHaiyi corporate circular states that APIC was ultimately “100 percent owned” by Tang and Chen. SingHaiyi’s 2014 annual report also says that APIC was owned by the couple, and its 2016 report states APIC is “controlled” by them. (APIC’s general counsel declined to discuss the company’s ownership structure on the record.)
Now headquartered in San Francisco, APIC calls itself a “diversified international investment holding company.” It currently owns, among other properties, five hotels and several residential developments in San Francisco, and three luxury hotels in China.
SingHaiyi has described APIC as its “sister firm” in news releases, a term that means they have the same ultimate owners.
(Bush, like his business partner Tang, has been the subject of government investigations. Bush was famously sued by the federal government for his role on the board of Silverado Savings & Loan in Colorado from 1985 until 1988, when it collapsed with over $1 billion in debts. Silverado made $141 million in never-repaid loans to two investors in Bush’s oil exploration business; one of them used his free Silverado money to buy the entire company from Bush. Bush never faced criminal charges but did have to pay $50,000 to help settle the federal lawsuit and was reprimanded by government regulators.)
“We are very lucky to know them,” Wilson Chen said of the Bush family. “We talk to them as friends.” He noted that the Bushes have always been kind to China and said that “because of our generosity,” he was invited to attend a Right to Rise USA fundraising event hosted by Jeb Bush in April 2015 at the Mandarin Oriental, a luxury hotel in San Francisco.
APIC, which was initially incorporated in Oregon, made contributions between 2010 and 2014 to state and local Oregon politicians, mostly Democrats, totaling about $25,000. The earlier donations include $9,500 given to John Kitzhaber, a Democrat who was elected governor of Oregon in 2010 and 2014 and resigned last year in an unrelated ethics scandal.
“You know the politicians,” said Wilson Chen about the company’s history of donations. “They always ask for help.”
Wilson Chen, who unlike his sister and brother-in-law is a U.S. citizen, stated that APIC has never asked for anything specific in return for its money. However, he said, the connections between the company and prominent U.S. politicians gave those involved with APIC stature in Asia.
When asked whether Gordon Tang was unhappy with the donation to Rise to Rise USA given Jeb Bush’s quick defeat, Chen said no: It was simply about helping a friend. (Right to Rise USA did not spend all of the money it received, and when Bush withdrew from the race, it sent refunds to contributors on a pro rata basis; APIC got back $152,230.)
In Politico’s 2015 list of the 50 most influential people in U.S. politics, Charlie Spies is tied for second place with David Bossie, president of the organization Citizens United, and behind only Supreme Court Justice Anthony Kennedy, author of the Citizens United majority opinion.
Before Spies was general counsel for Right to Rise USA, he co-founded Restore Our Future, the main Super PAC supporting Mitt Romney’s 2012 presidential campaign. Spies was also chief financial officer and counsel for Romney’s first presidential run in 2008.
As Politico put it, Spies “has mastered the art of helping candidates benefit from Super PACs. … His work created a playbook that allows candidates to maximize the new flood of money into politics.”
For instance, Spies advised Jeb Bush to launch Right to Rise USA months before the official start of his presidential campaign in June 2015. This allowed Bush to spend that time directly raising unlimited contributions for his Super PAC, something that would become illegal once Bush was a declared candidate. APIC’s initial donation to Right to Rise USA was made during this period.
Spies’s stature in Republican circles is further enhanced by his wife, Lisa, a prominent GOP fundraiser in her own right. Lisa Spies is known to use a famous quote from Gilded Age powerbroker Mark Hanna as her email signature: “There are two important things in politics. The first is money, and I can’t remember what the second one is.”
The memo begins by noting that U.S. law strictly forbids any “foreign national” from “contributing, donating, or spending funds in connection with any elections in the United States.” The term “foreign national” includes foreign individuals, corporations, and governments.
However, as Spies helpfully explains in the memo, a company incorporated in the U.S. is not considered foreign. The law prohibiting donations by “foreign nationals” defines the term as equivalent to that of “foreign principals” found in 22 U.S.C. § 611(b). That, in turn, clearly states that a corporation is not a foreign principal if it is “organized under or created by the laws of the United States or of any State.”
By that standard, it doesn’t matter that APIC is owned by Chinese citizens. It’s incorporated in California and therefore counts as an American company that can spend money in U.S. elections just like any other.
And that means it can spend a lot. By striking down prohibitions on corporations and unions engaging in “independent expenditures” on elections, the Supreme Court declared in Citizens United that they can spend as much of their money on engaging in political speech as they want — as long as it is not explicitly coordinated with federal candidates. But as it has turned out, despite the court’s stated intentions, Super PACs like Right to Rise USA are, in all but name, arms of presidential or congressional campaigns.
Supreme Court Justice John Paul Stevens warned about the potential dangers of this in his dissent in Citizens United. “Unlike voters in U.S. elections, corporations may be foreign controlled,” he wrote, and the decision “would appear to afford the same protection to multinational corporations controlled by foreigners as to individual Americans.”
There are, however, a few hoops foreign-owned corporations in particular need to jump through. Spies’s memo explains how to do the jumping.
For example, Federal Election Commission advisory opinions have held that any donation from a company must be, as Spies put it in the memo, “wholly derived from the net earnings generated within the United States [and] spent from segregated accounts not subsidized by the foreign parent corporation.”
In theory, this guarantees the corporation must be a functioning, profitable U.S. business and not simply a shell corporation passing money through into the American political process.
APIC was presumably able to pass that test — its U.S. holdings are large enough that they likely generate considerably more in U.S. profits than the $1.3 million it gave the Super PAC.
But as the enormous amount of corporate tax avoidance demonstrates, multinational corporations can transfer money to subsidiaries in ways that appear legitimate but are not. “It’s often hard to prove those type of things,” said Larry Noble, general counsel of the Campaign Legal Center and previously longtime general counsel of the FEC.
Moreover, money is fungible. The donations to Right to Rise USA made Tang and Chen $1.3 million poorer, whether the money officially came out of their APIC pocket in the U.S. or their pockets in Singapore.
Another hoop: FEC regulations state that foreign nationals may not “directly or indirectly participate in the decision-making process” on political donations. As Spies writes, FEC advisory opinions have held that foreign nationals may decide to create a special segregated account for contributions and set a maximum budget, but that’s it. After that point, all decisions must be “made by a Special Committee comprised solely of U.S. citizens” — including the composition of the committee itself.
But that’s hardly enforceable. As Noble points out, it’s “a fiction” that U.S. citizens in that position could ever make truly independent decisions. “Of course the person is going to be aware of what the board wants, what the company wants, and its interests,” he said.
In any case, in interviews with The Intercept, both Wilson Chen and Gordon Tang made statements that suggest Tang may have violated the relevant FEC regulations.
According to Chen, “I proposed to make a donation to the Republican Party and then let the board of directors approve it before sending the donation.” APIC’s board includes Chen himself and Neil Bush, both U.S. citizens, but also Chinese citizens Tang and Huaidan Chen.
For Tang’s part, when asked why APIC made the donation to Right to Rise USA, he responded: “Wilson said to donate, so I did, I don’t really mind.”
As Paul Ryan points out, this indicates that Tang “was the ultimate decision-maker” even if he made his decision at Wilson Chen’s suggestion. Tang’s statement also has significance beyond the narrow legal question, said Ryan, because it “makes clear that the legal fiction that a U.S.-based corporation that is wholly owned by foreign nationals is a U.S. donor, not a foreign national donor, is ridiculous.”
So APIC — to its potential detriment — may not have followed Spies’s playbook in every respect. But there’s no question that Spies’s analysis was correct: The Intercept asked numerous lawyers from both parties who specialize in campaign finance law to examine Spies’s reasoning, and all agreed with it. As long as a foreign-owned U.S. corporation follows the rules, it can legally go ahead and give an unlimited amount of money to a Super PAC.
While this would likely seem like an alarming conclusion to most Americans, it is the law of the land.
When Obama predicted during his State of the Union address that Citizens United would open the door to foreign money in elections, the television cameras cut to Justice Samuel Alito, part of the majority in that decision. Sitting in the second row, Alito could clearly be seen shaking his head and mouthing the words “not true.”
Bradley Smith, a former chairman of the FEC and key intellectual architect of the deregulation of campaign finance, wrote that “the president’s statement is false.” PolitiFact found Obama’s claim to be “mostly false.”
As for Spies, he told The Intercept that if any Americans are truly concerned about foreign influence on U.S. politicians, they should look to donations by foreign governments to the Clinton Foundation. “That’s a real problem,” he said, “not the three or five steps removed like you’re trying to pigeonhole the situation into here.”
Of course, however troubling contributions to the Clinton Foundation by foreign governments may be, such donations do not violate any laws. So there, at least, Spies and Obama find common ground on money in politics: Both believe something can be completely legal yet deeply wrong.
In response to detailed questions about APIC’s political activities, a representative for Tang and Huaidan Chen responded, “APIC is a legal American company. Our donations are all legal and approved by lawyers. We won’t break the law for our donations.”
The Campaign Legal Center told us it plans to file a complaint with the FEC asking it to open an inquiry into APIC’s contributions, but the reality is that the FEC has largely stopped enforcing even what few campaign finance limits still exist. The FEC has six commissioners, no more than three of whom may come from any one political party. The three current Republican commissioners philosophically object to most restrictions on political spending, which has led to frequent 3-3 deadlocks on important votes, including ones on whether to investigate possible foreign influence on U.S. elections.
“These days, the FEC doesn’t investigate anything,” said Noble. “The way things stand today, you’d probably have to hand them an email that says, ‘I’m directing you to make this contribution out of our foreign money.’”
There is just one known inquiry in the six years since Citizens United into a situation similar to that of APIC, but it was conducted by the Justice Department, not the FEC: A Mexican businessman was charged in 2014 with funneling $100,000 to a Super PAC he created via a U.S. shell corporation in an attempt to elect Republican Bonnie Dumanis as mayor of San Diego.
If Congress wanted to do something about foreign money in elections, it could have passed the DISCLOSE Act of 2010, which would have prohibited corporations with greater than 20 percent foreign ownership from putting money into the U.S. political process. But the act failed when first introduced, even with Democrats controlling the House and Senate. And this foreign ownership provision was stripped out of the most recent version of the bill.
And passage of such a law might make little difference given the partisan gridlock at the FEC; the law hardly matters if it isn’t enforced. Moreover, foreign ownership of a corporation can easily be disguised. As Donald Tobin, dean of the University of Maryland Law School, noted at a June 23 FEC event on the subject of foreign money in elections, “A foreign individual could create a Wyoming corporation. The Wyoming corporation could be the sole owner of a Delaware corporation that could own a Nevada corporation. The Nevada corporation could then engage in independent expenditures on behalf of a candidate. … It’d be incredibly difficult for any government entity, including the FEC, to have any idea that the funds in question” ultimately came from a foreign national.
So are there many more APICs, quietly putting their thumbs on the scale of elections for president, Congress, and state houses across the country? The reality is that America’s system of big-money politics exists in such darkness that it’s impossible to know for certain. And this door to foreign influence will likely remain open unless Citizens United is overturned by a new Supreme Court or invalidated by a constitutional amendment.
“When the president condemned Citizens United and warned that it would open the floodgates to corporate money, including foreign money, he was contemplating this,” said Norman Eisen, who was special counsel to the president when Obama delivered his 2010 State of the Union address. “I think he was prescient. I’m sure there are many more secret examples out there. It’s a sad state of affairs, but the worst scandal in the United States is what’s legal.”
A series exploring how money from abroad has entered the 2016 presidential election thanks to Citizens United.