Is New Supreme Court Ruling a Retreat from Citizens United?

By Richey, Warren | The Christian Science Monitor, January 9, 2012 | Go to article overview

Is New Supreme Court Ruling a Retreat from Citizens United?


Richey, Warren, The Christian Science Monitor


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. …

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