Wednesday, August 10, 2011

Court Upholds Ban on Foreign National Campaign Spending

A three-judge district court (D.D.C.) ruled this week in Bluman v. FEC that the federal ban on campaign spending by foreign nationals is constitutional.  The court thus upheld restrictions on foreign nationals' campaign contributions and expenditures against a First Amendment challenge.

The restrictions on foreign nationals' participation in U.S. elections, expanded under the Bipartisan Campaign Reform Act of 2002, prohibit foreign nationals from contributing to candidates or political parties, making expenditures to expressly advocate the election or defeat of a political candidate, and making donations to outside groups when those donations would be used to finance express-advocacy expenditures.  2 U.S.C. Sec. 441e(a).  The restrictions apply to all foreign nationals except those admitted as lawful permanent residents.  Foreign nationals are not barred from issue advocacy.

Citing the line of Supreme Court rulings that upheld restrictions on activities of foreign nationals "intimately related to the process of democratic self-governance," Bernal v. Fainter (1984), the court held that the government had a compelling interest in limiting the participation of non-Americans in the democratic political process. 

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.

Op. at 10.

The court said that the restrictions were not underinclusive for allowing lawful permanent residents to spend and contribute, because lawful permanent residents have a long-term stake in the outcome of U.S. elections similar to the stake of citizens.  Moreover, it said that the restrictions were not underinclusive for allowing foreign nationals to make contributions and expenditures related to ballot initiatives, because "Congress may proceed piecemeal in an area such as this involving distinctions between citizens and aliens."  Op. at 15.

The court correctly wrote that the Supreme Court has yet not ruled on the question of foreign nationals' First Amendment rights to contribute or spend in campaigns.  But it quoted Justice Stevens' opinion in Citizens United to say that four justices have concluded that foreign nationals have no such rights, and that nothing in the Citizens United majority opinion says otherwise.

SDS

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