Supreme Court Upholds Ban on Candidate Campaign Contributions and Expenditures by Non-Permanent-Resident Foreign Citizens

Yesterday, the Supreme Court summarily affirmed Bluman v. FEC (D.D.C. Aug. 8, 2011), an opinion by a three-judge District Court that upheld the ban on non-permanent-resident foreign citizens’ candidate campaign contributions and independent expenditures supporting or opposing candidates.

This sets a precedent that the statute is constitutional, since the Supreme Court actually affirmed the case rather than just denying certiorari. (Under the statutory scheme involved in this case, the lower court decision was rendered by a three-judge trial court, rather than the usual one-judge trial court or three-judge appellate panel, and was appealable to the Court rather than being subject to the Court’s discretionary certiorari decisionmaking.) But it doesn’t endorse the reasoning of the court below, nor set forth any specific reasoning that would have precedential value. Rather, in the Court’s words in an earlier case,

[T]he precedential effect of a summary affirmance extends no further than “the precise issues presented and necessarily decided by those actions.” A summary disposition affirms only the judgment of the court below, and no more may be read into our action than was essential to sustain that judgment.

So we don’t know exactly what reasoning the Supreme Court used, but we do have the reasoning of the three-judge District Court (which may well have some persuasive precedential effect on other courts deciding on other restrictions on non-citizens’ speech and other activity, even though it has no binding precedential value). Here is what strikes me as the key part of the analysis:

We know from more than a century of Supreme Court case law that foreign citizens in the United States enjoy many of the same constitutional rights that U.S. citizens do. For example, aliens are generally entitled to the same rights as U.S. citizens in the criminal process, among several other areas.

But we also know from Supreme Court case law that foreign citizens may be denied certain rights and privileges that U.S. citizens possess. For example, the Court has ruled that government may bar foreign citizens from voting, serving as jurors, working as police or probation officers, or working as public school teachers. The Court has further indicated that aliens’ First Amendment rights might be less robust than those of citizens in certain discrete areas. See Harisiades v. Shaughnessy, 342 U.S. 580, 591–92 (1952) (First Amendment does not protect aliens from deportation because of membership in the Communist Party). Beyond that, the Constitution itself of course bars foreign citizens from holding certain offices.

In those many decisions, the Supreme Court has drawn a fairly clear line: The government may exclude foreign citizens from activities “intimately related to the process of democratic self-government.” …

We read these cases to set forth a straightforward principle: It is fundamental to the definition of our national political community that foreign citizens do not have a constitutional right to participate in, and thus may be excluded from, activities of democratic self-government. It follows, therefore, that the United States has a compelling interest for purposes of First Amendment analysis in limiting the participation of foreign citizens in activities of American democratic self-government, and in thereby preventing foreign influence over the U.S. political process….

Political contributions and express-advocacy expenditures are an integral aspect of the process by which Americans elect officials to federal, state, and local government offices…. We think it evident that those campaign activities are part of the overall process of democratic self-government. Moreover, it is undisputed that the government may bar foreign citizens from voting and serving as elected officers. It follows that the government may bar foreign citizens (at least those who are not lawful permanent residents of the United States) from participating in the campaign process that seeks to influence how voters will cast their ballots in the elections. Those limitations on the activities of foreign citizens are of a piece and are all “part of the sovereign’s obligation to preserve the basic conception of a political community.” …

Plaintiffs try in various ways to overcome the relevant Supreme Court precedents. First, they acknowledge that they do not have the right to vote in U.S. elections, but they contend that the right to speak about elections is different from the right to participate in elections. But in this case, that is not a clear dichotomy. When an expressive act is directly targeted at influencing the outcome of an election, it is both speech and participation in democratic self-government. Spending money to contribute to a candidate or party or to expressly advocate for or against the election of a political candidate is participating in the process of democratic self-government.

Notably, § 441e(a) as we interpret it, does not restrain foreign nationals from speaking out about issues or spending money to advocate their views about issues. It restrains them only from a certain form of expressive activity closely tied to the voting process — providing money for a candidate or political party or spending money in order to expressly advocate for or against the election of a candidate….

Plaintiffs also point out that many groups of people who are not entitled to vote may nonetheless make contributions and expenditures related to elections — for example, minors, American corporations, and citizens of states or municipalities other than the state or municipality of the elective office. But minors, American corporations, and citizens of other states and municipalities are all members of the American political community. By contrast, the Supreme Court has said that “[a] liens are by definition those outside of this community.” The compelling interest that justifies Congress in restraining foreign nationals’ participation in American elections — namely, preventing foreign influence over the U.S. government — does not apply equally to minors, corporations, and citizens of other states and municipalities. It is long established that the government’s legislative and regulatory prerogatives are at their apex in matters pertaining to alienage.

It is hardly surprising, therefore, that a law that is justified as applied to aliens may not be justified as applied to citizens of the United States, or entities made up of such citizens. Thus, the fact that those other non-voting groups of U.S. citizens are free to contribute and make expenditures does not mean that foreign nationals are similarly entitled….

[W]e note three important limits to our holding in this case. First, we do not here decide whether Congress could constitutionally extend the current statutory ban to lawful permanent residents who have a more significant attachment to the United States than the temporary resident plaintiffs in this case. Any such extension would raise substantial questions not raised by this case.

Second, we do not decide whether Congress could prohibit foreign nationals from engaging in speech other than contributions to candidates and parties, express-advocacy expenditures, and donations to outside groups to be used for contributions to candidates and parties and express-advocacy expenditures. Plaintiffs express concern, for example, that a ruling against them here would green-light Congress to impose bans on lobbying by aliens temporarily in this country. They similarly express concern that Congress might bar them from issue advocacy and speaking out on issues of public policy. Our holding does not address such questions, and our holding should not be read to support such bans.

Third, we caution the government that seeking criminal penalties for violations of this provision — which requires that the defendant act “willfully,” see 2 U.S.C. §§ 437g(a)(5)(C), 437g(d)(1)(A) — will require proof of the defendant’s knowledge of the law. There are many aliens in this country who no doubt are unaware of the statutory ban on foreign expenditures, in particular.

[Footnote moved:] Our holding means, of course, that foreign corporations are likewise barred from making contributions and expenditures prohibited by 2 U.S.C. § 441e(a). Because this case concerns individuals, we have no occasion to analyze the circumstances under which a corporation may be considered a foreign corporation for purposes of First Amendment analysis.

I’m not persuaded by the Court’s analysis, especially as to independent expenditures. It seems to me that the right to speak about any subject — including about candidates — using one’s own money (or the money that one’s organization has put at one’s disposal) is indeed the exercise of free speech, and can’t be limited on the grounds that it constitutes participation in elections. That one can’t participate in an election by voting shouldn’t stop one from participating in public debate (including debate about who should be elected) by speaking.

Moreover, the precedents that the District Court cited don’t strike me as apposite. Most deal with noncitizens’ not being protected by the Equal Protection Clause in certain contexts: The Supreme Court has held since the early 1900s that discrimination by states (not the federal government) against noncitizens is presumptively unconstitutional, but in certain “political” contexts is allowed. But this doesn’t tell us much about the proper scope of noncitizens’ substantive rights such as free speech rights, especially when they are rights that are often talked about as basic human rights.

And the one First Amendment case the District Court cites, Harisiades v. Shaughnessy (1952), is ambiguous. Though it allowed the deportation of noncitizens for being members of the Communist Party, but this was at a time when even American citizens were seen as being punishable for being members of the Communist Party. Indeed, the Harisiades Court cited as support Dennis v. United States (1951), a case upholding criminal punishment of a U.S. citizen for being a Communist Party leader.

Nor does it seem to me that a total ban on all paid-for speech about candidates made by non-permanent-residents — regardless of the amount of the payment or of any other circumstances — is narrowly tailored to any potentially compelling government interest in national security or freedom from foreign influence.

But the three judges in Bluman don’t share my view on the reasoning. And at least five and maybe all nine of the Supreme Court Justices think that the District Court’s result is correct — that noncitizens (at least ones who aren’t permanent residents) may indeed be banned from spending even small amounts of money to express support or opposition to candidates for office.

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