Is new Supreme Court ruling a retreat from Citizens United?

The Supreme Court upheld Monday a long-established provision of campaign finance law that seeks to prevent foreign interests from influencing domestic politics.

The US Supreme Court on Monday summarily affirmed a lower court decision upholding a congressional ban on  foreign nationals spending money to influence the outcome of American elections.

The action upholds a long-established provision of campaign finance law that seeks to prevent foreign interests from influencing domestic politics.

And it signals a possible retreat – in a presidential election year – from the expansive free speech principles championed by the high court in its controversial 2010 decision, Citizens United v. FEC.

At issue in Bluman v. FEC (11-275) was whether the First Amendment protects a free speech right of foreign individuals in the US to spend money supporting or opposing a particular candidate or political issue.

The Bluman case was viewed as a potential sequel to the Citizens United decision. In that case the justices invalidated a congressional ban on corporate and labor union spending for election-related advertisements and other communications.

The high court ruled 5-4 that corporations and labor unions enjoy a First Amendment right to spend their money to run independent advertisements supporting a favored issue or candidate during election season.

The Bluman case raised a similar First Amendment issue. The case sought to extend the same free speech principles to campaign finance laws blocking election contributions and expenditures by foreign residents in the US.

The high court was apparently uninterested in examining the issue in greater detail. Instead, the justices delivered a four-word opinion: “The judgment is affirmed.”

The First Amendment protects the broad right of non-citizens to comment on US elections and candidates. But Congress banned political contributions and electioneering expenditures from foreign entities and foreign citizens, other than those who are lawful permanent residents of the US.

The Bluman case questioned why First Amendment free speech protections don’t also extend to foreign citizens who are legally present in the US on a temporary work visa.

The case was filed on behalf of two individuals who are in the US on work visas that are set to expire in 2012.

Benjamin Bluman is Canadian and works as an associate at a New York law firm. Despite his status as a non-permanent resident, Mr. Bluman wants to contribute to Democratic candidates running in US elections.

Asenath Steiman is a dual citizen of Canada and Israel. She works as a physician in New York and wants to contribute to Republican candidates running in US elections.

Both claimed the First Amendment protects their right to make political contributions despite the fact that they are not permanent residents.

The Federal Election Commission countered that Congress was within its authority to bar participation by those who have no permanent connection to the country.

A three-judge panel in Washington dismissed the case, ruling that a “fairly clear line” has been established that the government can exclude foreign citizens from participating in activities that are intimately related to the process of democratic self-government.

The court upheld both a contribution ban and an expenditure ban, saying it was a justifiable way for Congress to seek to limit foreign influence in US elections.

The case sought to explore an inconsistency in the application of constitutional rights to those present in the US.

Many rights guaranteed in the Constitution apply equally to all citizens and foreigners present in the US, such as the protections of the criminal justice system. There is a right to public education and welfare, as well as the ability to work. But the right to participate in self-government is reserved to citizens.

Noncitizens may not vote, serve as jurors, work as police officers, as public school teachers, or hold certain public offices.

“In our view, spending money to influence voters and finance campaigns is at least as (and probably far more) closely related to democratic self-government than serving as a probation officer or public school teacher. Thus, our conclusion here follows almost a fortiori from those cases,” the three-judge panel of US District Court for the District of Columbia said in its decision.

“Temporary resident foreign citizens by definition have primary loyalty to other national political communities, many of which have interests that compete with those of the United States,” the three-judge panel said.

Lawyers for Bluman and Steiman had argued that the government can bar foreign citizens abroad from making contributions, but it can’t impose that restriction when they are present within the US.

Lawful residents of the US are entitled to the full protections of the First Amendment, wrote Washington lawyer Michael Carvin in his brief to the court.

“The decision below is not simply wrong; it is dangerous,” Mr. Carvin said. “In upholding [the campaign finance restrictions], the court drafted a road-map for every legislature that wants to take another crack at criminalizing political spending,” he said.

“The unavoidable import of the decision is that all resident aliens – including the 12 million permanent residents now living in the U.S. – could be banned from calling members of Congress or attending a political rally,” Carvin said.

He said lawmakers and members of the public will watch the case closely to see if the Supreme Court “meant what it said in Citizens United,” or intends to retreat from free speech principles affirmed in that decision.

Solicitor General Donald Verrilli countered in his brief that Congress is well justified in seeking to limit foreign influence in American elections.

“The long and well documented history of attempts by foreign nationals to exert financial influence over American elections amply demonstrates that direct electoral spending is well within the range of alien activity that Congress has a compelling interest in preventing,” Mr. Verrilli wrote.

“The First Amendment does not require Congress to make an all-or-nothing choice between excluding an alien from the United States and allowing him to participate in the fundamental operations of democratic self-government,” he said.

“From the Nazi propaganda of the 1930s to the direct campaign contributions of the Watergate era to the soft-money donations of the 1990s, foreign interests have consistently demonstrated their desire and willingness to spend money to sway American elections and governmental decisions,” Mr. Verrilli wrote.

The solicitor general added: “Foreign financing has come not only directly from overseas, but also routed through foreign nationals in the United States.”

In his dissent to the Citizens United decision, then-Justice John Paul Stevens said the government has the authority to block foreign nationals from making expenditures and contributions in US elections. His dissent was joined by three other justices – Ruth Bader Ginsburg, Stephen Breyer, and Sonia Sotomayor.

The five majority justices in the Citizens United decision did not address the issue. Thus it was unclear – until Monday – what a majority of Supreme Court justices thought about the foreign resident ban.

Carvin had argued that the right to speak about elections is different than participating in those elections.

But the three-judge panel said that spending is participation. “When an expressive act is directly targeted at influencing the outcome of an election, it is both speech and participation in democratic self-government,” the court ruled. “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,” the judges said.  

“Notably, [the campaign finance law] as we interpret it, does not restrain foreign nationals from speaking out about issues or spending money to advocate their views about issues,” the court said. “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.”

The court added: “A statute that excludes foreign nationals from political spending is therefore tailored to achieve that compelling interest.”