Yesterday the U.S. Supreme Court summarily affirmed a lower-court decision upholding a federal law that prohibits noncitizens who lawfully reside in the United States—except for “permanent residents,” i.e., “green card” holders—from spending money to influence U.S. elections. IJ had submitted a friend-of-the-court brief urging the Supreme Court to hear the case, Bluman v. FEC.
The result is disappointing, not only because the Supreme Court sanctioned the censorship of noncitizens who lawfully live in the United States, but because the Court did not stick to the principled stance it announced in Citizens United v. FEC. Indeed, the Montana Supreme Court recently pointed to the lower-court ruling in Bluman—affirmed by the Supreme Court today—as a reason to defy Citizens United.
What is perhaps most disappointing is that the Court’s summary affirmance could be read erroneously to sanction not just the lower court’s result, but also the slipshod approach the court took to getting there. The lower court disposed of the case on a motion to dismiss, which meant that the government was not required to provide any evidence to support its argument that the government had a compelling interest in banning speech by noncitizens, including even such patently harmless speech as leafleting in Central Park. This is, to our knowledge, the first time in the Supreme Court’s history that it has upheld a campaign-finance law that came before it with no factual development on a motion to dismiss.
In all likelihood, the decision is Bluman is an anomaly that will not have a major effect on the rest of the Court’s campaign-finance jurisprudence—it will be treated as a sui generis rule that applies only to noncitizens. As opponents of campaign-finance regulations, we take comfort in that. But as believers in the idea that the First Amendment protects a preexisting natural right to engage in peaceful political speech and association—a right on which citizens and permanent residents hold no monopoly—we can’t help but be disappointed in the Court’s ruling.
Despite the case’s unfortunate conclusion, we give kudos to Michael Carvin, Yaakov Roth, and Warren Postman of Jones Day for their exemplary work on the case. And, of course, kudos to plaintiffs Benjamin Bluman and Dr. Asenath Steiman for being willing to stand up for their rights.