Jan 12

Issue: Elections & Voting RSS First Amendment RSS

Elections, Money and the Limits of Constitutional Logic



Posted 2 years, 3 months ago.

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In 1921, when Benjamin Cardozo was a justice on New York’s highest state court (about a decade before he would become a Supreme Court Justice), he cautioned in a famous lecture series that logic could become too strong a driving force as judges decided cases. He warned against “the tendency of a principle to expand itself to the limit of its logic.” The Supreme Court this week showed that the warning was still entirely appropriate.

Justice Benjamin Cardozo. Library of Congress, Harris & Ewing Collection.

In an order on the top of a list issued last Monday, the Court said the following — and no more — about the case of Bluman v. Federal Election Commission: “The judgment is affirmed.” By the exercise of simple logic, one might think it ought to have said: “The judgment is reversed. See Citizens United v. Federal Election Commission.”

To some observers (including some lawyers) who read the Court’s controversial decision in the Citizens United case in January 2010, the long-standing federal ban on any form of financial influence in American politics by non-citizens looked doomed. Indeed, just ten months after that ruling came down, lawyers for two non-citizens who live and work legally in the U.S. had filed a lawsuit seeking to strike down that ban.

Indeed, why not file such a claim? The Court in the Citizens United ruling had said flatly that the free-speech clause of the First Amendment meant that Congress could not use the identity of the speaker as a basis for limiting donations and spending in U.S. campaigns for the Presidency and for Congress.

The opinion could not have been clearer on that point: “We find no basis for the proposition that, in the context of political speech, the Government may impose restrictions on certain disfavored speakers. Both history and logic lead us to this conclusion.”

Corporations and labor unions, the Court said, could not be singled out and kept from putting as much money as they liked into those campaigns. They have exercised that right freely since.

Benjamin Bluman, a Canadian citizen who has documents allowing him to remain in the U.S. while he works as a lawyer in New York, and Dr. Asenath Steiman, a dual citizen of Canada and Israel who also can remain while he pursues his medical residency in New York, thought they, too, were protected by that ruling. Logic told them so: their identity as foreign nationals was singled out explicitly in a federal law.

Each of them wanted to spend some money in this year’s federal elections (on opposite partisan sides, by the way), but federal law barred them from doing so — in any election: federal, state or local. That law, in a form that dates from 2002 (but with prior versions dating back to 1935), makes it a crime for a foreign national “directly or indirectly” to make any donation or to spend any money in a U.S. election, even if they did that completely independently of any candidate: in other words, even if they were expressing their own political views.

The Supreme Court’s opinion in Citizens United, the District Court said, “is entirely consistent with a ban on foreign contributions and expenditures.”

So, rather than risk prosecution, they sued the FEC to get the ban struck down, relying very heavily upon the Citizens United decision and its logic suggesting that all speakers were welcome in American campaigns. (Of course, the Supreme Court had said explicitly then that it was not ruling on any law that dealt with foreign nationals, but that certainly was not a ruling that it had excluded them from the logical promise of its decision.)

Even so, a three-judge federal District Court in Washington upheld the ban last August, applying the most rigorous constitutional test available (“strict scrutiny”), as the First Amendment requires. It said that Congress had a “compelling interest” in limiting the participation of foreign nationals in activities of American democratic self-government — among other reasons, because they “lack primary loyalty” to this country. Foreigners living here can be banned from voting and running for office, it said, and giving or spending money is just as much a part of political opportunity.

The Supreme Court’s opinion in Citizens United, the District Court said, “is entirely consistent with a ban on foreign contributions and expenditures.” Bluman and Dr. Steiman, it said, can speak out about political issues, and spend money to promote their views. They just can’t do it as corporations and labor unions and U.S. citizens can.

Moving on to the Supreme Court, the two challengers said the ban could not be squared with Citizens United: it was a “speaker-based” ban. The Supreme Court examined their appeal briefly, and rejected it in four words, without an opinion explaining why. Not one of the nine Justices noted a dissent. Logic does have limits, it seems.

Lyle Denniston is the National Constitution Center’s Adviser on Constitutional Literacy. He has reported on the Supreme Court for 53 years, currently covering it for SCOTUSblog, an online clearinghouse of information about the Supreme Court’s work.



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