Supreme Court Affirms Ban On Campaign Contributions And Independent Expenditures By Foreign Nationals

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...