Foreign citizens who are legally living in the United States have no constitutional right to spend or contribute money in connection with U.S. elections for any government office, the Supreme Court reaffirmed in a one-sentence order this week. Without elaboration or any noted dissents, the Supreme Court upheld the lower-court decision of Bluman v. FEC that it is constitutional for Congress to bar foreign citizens legally living in the United States from monetarily participating in the campaign process. In so doing, the Supreme Court made clear that Citizens United v. FEC,1 the Court's controversial opinion from January 2010, does not extend beyond United States citizens (including corporations).2
In Bluman v. FEC, Ben Bluman, a Canadian lawyer working in New York, and Anaseth Steiman, a Canadian-Israeli dual citizen doing a medical residency in New York, challenged the constitutionality of the Bipartisan Campaign Reform Act of 2002 (the "BCRA")3, which expanded the prohibition on foreign nationals'4 financial influence on U.S. elections by banning foreign nationals from making express-advocacy expenditures (often called independent expenditures) or campaign contributions to political parties, candidates, or PACs. Before a three-judge panel of the District Court for the District of Columbia, Bluman and Steiman argued that foreign citizens lawfully residing in the United States have a First Amendment right to contribute to candidates and political parties and to make express-advocacy expenditures.
The D.C. District Court disagreed. Relying on Supreme Court precedent denying foreign citizens certain rights and privileges enjoyed by U.S. citizens (including voting, serving as jurors, working as police or probation officers, or working as public school teachers), the court concluded that "[i]t 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."5For this reason, the court found that "the United States has a compelling interest for purposes of First Amendment analysis in limiting participation of foreign citizens in activities of American democratic self-government, and in thereby preventing foreign influence over the U.S. political process."6The District Court then concluded that political contributions and express-advocacy expenditures, including donations to outside groups that in turn make express-advocacy donations or campaign contributions, constitute a part of the overall process of democratic self-government because these campaign activities seek to influence how voters will cast their ballots in elections.7 For this reason, the District Court found that the BCRA was not unconstitutional, even under a strict scrutiny analysis, and dismissed the case.
In challenging the District Court ruling, the appellants argued that the lower court decision was based solely on the identity of the donor, which they further argued directly contradicted the Supreme Court's rationale in Citizens United. In Citizens United, the Supreme Court left this argument open by explicitly stating that it was not ruling upon restrictions on campaign spending by foreign citizens. With this week's one sentence decision in Bluman v. FEC, the Supreme Court has now firmly resolved the issue and it is now clear that foreign citizens are prohibited from contributing to elections in the United States.
Footnotes
1 130 S.Ct. 876, 175 L.Ed.2d 753 (2010).
2 This also applies to lawful permanent residents such as green card holders.
3 Pub. L. No. 107-155, § 303, 116 Stat. 81, 96.
4 A foreign national is defined to include all foreign citizens except those who have been admitted as lawful permanent residents. 2 U.S.C. § 441e(b).
5 Bluman v. FEC, 800 F. Supp. 2d 281, 287 (D.D.C. 2011).
6 Id. at 288.
7 Id.
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