Friday, January 7, 2011

Challenge to Foreign National Campaign Contributions To Go Forward

Judge Ricardo Urbina (D.D.C.) today granted an application by two foreign nationals, plaintiffs in Bluman v. FEC, for a three-judge panel under the Bipartisan Campaign Reform Act of 2002 (BCRA) to challenge the Act's restriction on campaign contributions and expenditures by foreign nationals.

Section 303 of the BCRA makes it unlawful for a foreign national to make

(A) 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;

(B) a contribution or donation to a committee of a political party; or

(C) an expenditure, independent expenditure, or disbursement for an electioneering communication[.]

2 U.S.C. Sec. 441e(a)(1).  The provision replaces the former, similar ban in the Federal Election Campaign Act (FECA).

Under the BCRA, a constitutional challenge against any section of the BCRA must go before a three-judge court.  That's just what plaintiffs applied for here.

But the FEC balked, arguing under McConnell v. FEC that a three-judge panel lacks authority to hear a constitutional challenge to Section 303 of the BCRA, because the activities it prohibits were already illegal under FECA.  (The FEC thus effectively challenged standing: plaintiffs lacked standing, they claimed, because any ruling by the three-judge panel that Section 303 was unconstitutional wouldn't redress their harm.  After all, they claimed, even if Section 303 were unconstitutional, FECA previously prohibited the same activity.  The ruling would only affect Section 303, not FECA, and the activity would therefore still be prohibited under FECA.  (FECA requires constitutional challenges to go before an en banc circuit court.))

Judge Urbina rejected the argument.  He ruled that Section 303 of the BCRA replaced the similar prohibition in the FECA, and therefore a ruling that Section 303 was unconstitutional would redress the plaintiffs' harms.  "Unlike McConnell, if a three-judge court were to strike down Section 303 as unconstitutional, then no other law (or at least none which the defendant has identified) would prohibit the plaintiffs from engaging in their desired conduct."  Op. at 5.

(Judge Urbina rejected the plaintiffs' request for a three-judge panel for their challenge to the FEC regulations implementing Section 303.  The BCRA authorizes the three-judge panel for constitutional challenges to the BCRA.  But here the regs are different than the BCRA.)

The ruling allows the plaintiffs' case challenging Section 303 to move forward before a three-judge panel of the district court. 


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