On Monday the Institute for Justice filed a friend-of-the-court brief urging the U.S. Supreme Court to grant review in Bluman v. FEC. As Make No Law readers may recall, Bluman is a First Amendment challenge to a federal law that prohibits noncitizens—except for those classified as “permanent residents”—from making political contributions or spending any money to support or oppose political candidates. Despite the fact that the Supreme Court in Citizens United v. FEC held that speech restrictions based on the identity of the speaker are unconstitutional, in August a three-judge panel upheld the law as a permissible means of preventing “foreign influence” on American politics. Last month, the attorneys for the plaintiffs asked the Supreme Court to review the case.
Bluman is a fascinating and important case that absolutely merits review by the Supreme Court. As we argue in our brief, the law at issue is unconstitutional as applied to aliens like the plaintiffs, a Canadian lawyer and a Canadian-Israeli doctor, both of whom lawfully reside in the United States. Simply put, individuals who are lawfully within the United States should enjoy the full protection of the First Amendment. This means that, like Americans and permanent residents, they presumptively enjoy the right to spend money on political speech and even make political contributions.
Under well-established First Amendment principles, the government can only overcome this presumption if it can prove that its restriction on speech by non-permanent-resident aliens satisfies “strict scrutiny,” the highest level of judicial review. Strict scrutiny requires the government to come forward with genuine evidence that the speech it seeks to restrict is harming some interest the government is charged with protecting and that it is restricting no more speech than necessary to address that harm. The government didn’t do that in this case, therefore the law is unconstitutional.
As we argue in our brief, there is no reason to depart from these well-established First Amendment principles simply because the speakers in this case were not born in the United States. To understand why, it helps to first recognize that we already live in a world where “foreign influence” on American politics happens all the time, and we are none the worse for it. For example:
-Under the Foreign Agents Registration Act, foreigners—and even foreign governments—are permitted to spend unlimited amounts of money directly lobbying elected officials, and have been for decades;
-Foreigners, even those living abroad, are permitted to make unlimited “in-kind” contributions of volunteer services to political candidates, even if the value of those services is significantly greater than the legal limit for monetary contributions, as when Elton John volunteered as a performer at an event that raised $2.5 million for then-Senator Hillary Clinton’s presidential campaign; and
-Foreign-owned magazines and newspapers—like the British-owned weekly magazine, The Economist, which has a U.S. circulation of over 760,000—routinely advocate the defeat or election of American political candidates through editorial endorsements.
These types of “foreign influence” on American politics have been tolerated for decades, and for good reason: It’s all just political speech and association. Democracy isn’t imperiled by too much political speech. To the contrary, political markets, like economic markets, function better when decision-makers (in this case, voters) are permitted to acquire information from diverse sources.
More fundamentally, the First Amendment doesn’t protect speech merely because it may advance “democracy” or be useful to voters during elections. It protects speech because freedom is good, and because the right to speak freely and associate with others for peaceful political purposes is an inherent natural right that belongs to all people. Not every country recognizes that right—and even fewer protect it robustly—but the United States does. That’s why the government can only restrict speech if it can prove that speech is harmful. And that's why the Supreme Court should grant review in Bluman and reaffirm that there is no exception to this foundational principle for campaign finance laws.
The full text of IJ’s amicus brief in Bluman v. FEC is available below the fold.