Benjamin Bluman is a Canadian citizen who lives in the US legally on a temporary work visa. A recent graduate of Harvard Law, he practices in the New York City office of Sidley Austin, a prestigious Chicago firm. Dr. Asenath Steiman claims dual citizenship in both Canada and Israel, but she is now completing her medical residency at Beth Israel Hospital in Manhattan. Both Bluman and Steiman are politically active and would like to put money forward to advance their interests. For Steiman, that means contributing funds toward the election campaign of Sen. Tom Coburn of Oklahoma, a Republican, since he has been a vocal opponent of President Barack Obama’s health care reform law. Bluman’s politics fall on the opposite side of the aisle. He would like to support Diane Savino, a Democratic state senator in New York who has been a strong advocate for same-sex marriage, as well as the Obama re-eelction campaign. He would also like to print leaflets encouraging Obama’s re-election and pass them out in Central Park.
But the Federal Elections Commission does not allow foreign nationals to make monetary contributions to any federal or state election campaign. In fact, it has not allowed them to do so since Congress passed a statute banning such contributions in 1974. More recently, Congress passed the Bipartisan Campaign Reform Act of 2002 (often referred to as “McCain-Feingold”) which extended the ban by making it illegal for foreign nationals to make contributions through the “soft money” process (money given to political parties or other interest groups but not directly to a political campaign) as well as any other method of “express advocacy” that specifically advocates the choice of a particular candidate in a federal or state election. In Citizens United v. Federal Elections Commission, the Supreme Court overturned part of that law as inconsistent with the freedom of speech clause of the First Amendment, but never directly addressed the issue over whether restrictions on the spending of foreign nationals in the American political process can be regulated.
Now comes the view of a three-judge panel, parsing out the “foreign contributions” angle as it applies to the suit filed by Bluman and Steiman. Last week, in a decision written by George W. Bush appointee Brett Kavanaugh, who has twice served a PJP Moot Court Judge, the court sided with the FEC, arguing that speech restrictions like those made law under the Bipartisan Campaign Reform Act only demonstrate “…the sovereign’s obligation to preserve the basic conception of a political community.” In other words, Bluman and Steiman cannot vote in American elections, so they should not be allowed to spend money or make donations in support of candidates in those elections.
But how does this notion measure against the reasoning the Court adopted in Citizens United? There the majority opinion in what was a 5-4 decision proved unhelpful to Kavanaugh. In reaching a decision to reject the bill’s limitations on corporate speech, the majority found it unnecessary to address McCain-Feingold’s new limitations on “foreign nationals” (in the tradition of the Court, decisions are reached on the narrowest issue possible.) So Kavanaugh looked instead to the non-binding dissenting opinion, where the now-retired Justice John Paul Stevens argued that the Bipartisan Campaign Reform Act’s restrictions on the speech of foreign nationals was consistent with the First Amendment. Four members of the Court joined that dissent.
So, what happens now? If the Supreme Court reviews the case and affirms the lower court opinion, it might undermine its own reasoning in Citizens United which, in rejecting limits on corporate spending, essentially adopted the position that more speech is good, no matter the source. Corporations cannot vote any more than foreign nationals can, so on what basis should the speech of temporary residents like Bluman and Steiman be curtailed while corporate speech is not? And what of the speech of foreign corporations operating in the United States? There is a long history of legislative curbs on this going back before McCain-Feingold, but that was before our day, when the multi-national corporation thrives. Given the spread of American corporate interest throughout the world, particularly China, can we really expect a domestic corporation to be any more invested in the integrity of our political community than an international firm? Of course, challenging the Court to reconsider its reasoning in Citizens United may well have been the primary motivation behind the suit brought by Bluman and Steiman. The two may get that chance now, on appeal.
Todd Brewster is the Director of the National Constitution Center’s Peter Jennings Project and the Center for Oral History at West Point.