Today a three judge panel for the U.S. District Court for the District of Columbia ruled that non-resident foreigners do not have a right to make political contributions or express advocacy expenditures in U.S. elections. The case, Blumen v. Federal Election Commission, involved a pair of Canadian citizens who sought to contribute to various U.S. candidates. Both plaintiffs were in the U.S. on long-term but temporary visas, first as students, and now on temporary work visas.
The opinion by Judge Brett Kavanaugh is pretty straightforward. It emphasizes that, contrary to the claims of the President and some others, the Supreme Court’s decision in Citizens United v. FEC did not authorize non-resident aliens to spend money or make contributions in U.S. elections. It then finds that, even applying strict scrutiny, the government has a compelling interest in limiting the participation of non-resident aliens in elections. It notes that the Supreme Court has previously put limitations on non-resident aliens serving on juries, voting, working as police or probation officers, or teaching at public schools.
The great foreign donor became a rallying bogeyman cry for the speech regulators in the wake of Citizens United, as they claimed that decision would allow foreign corporations to make contributions in U.S. political campaigns. I doubt that anyone really believed that – it was not raised as a defense of the prohibition on corporate political spending during the Citizens United litigation, and the Supreme Court expressly noted it was not ruling on that issue. Rather, it seems to have been an overt appeal to xenophobic tendencies in the populace intended to rally opposition to that case’s actual holding. Nobody really thought Congress banned all political spending by corporations to prevent foreign corporations from spending in elections.
Now, we’re not so sure that spending by foreign corporations is per se a bad thing – the thought of the Columbian-American Chamber of Commerce running ads to urge voters to support a backer of a free trade pact just doesn’t send shivers down our spines – but we also think that there are reasonable constitutional distinctions that can be made between non-resident aliens and foreign corporations, on the one hand, and resident aliens, citizens, and domestic corporations on the other.
Beyond that, the Court’s opinion is carefully reasoned and takes pains not to allow itself to be misinterpreted, noting that it does not discuss the question of resident aliens, or speech about politics and issues that does not expressly advocate the election or defeat of a candidate, or the barriers to criminal prosecutions.
Anyway, the horrible threat of a foreign takeover of U.S. elections now seems behind us. President Obama will probably mention that in his next state of the union address.
