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Benjamin Bluman
Benjamin Bluman, Plaintiff
In welcome news this morning, the Supreme Court today affirmed the decision of a three-judge panel below upholding the federal statute banning non-citizens (other than those who have been admitted as lawful permanent residents) from making political contributions towards federal, state and local elections in the United States.

The case involved Benjamin Bluman and Dr. Asenath Steiman. Bluman is a Canadian citizen working at a New York law firm and lawfully here on TN status; Steinman is a dual Canadian/Israeli citizen completing her medical residency at  Beth Israel Medical Center in New York, lawfully here on a J-1 visa. Each wanted to be involved in upcoming U.S. elections—Bluman by printing pro-Obama flyers and handing them out in Central Park; Steinman by giving money to the Club for Growth to aid in its independent expenditures on behalf of candidates. (Each suggested to the court below that s/he wanted to make direct candidate contributions as well, but this claim was not pressed in their Supreme Court pleading.)

The Court issued no written opinion; however, unlike a standard denial of certiorari, the affirmance here (given the procedural posture of the case) is of precedential value—as to the result below, if not necessarily its reasoning. That reasoning is best summed with these paragraphs from the opinion below:

But we also know from Supreme Court case law that foreign citizens may be denied certain rights and privileges that U.S. citizens possess. For example, the Court has ruled that government may bar foreign citizens from voting, serving as jurors, working as police or probation officers, or working as public school teachers. ... The Court has further indicated that aliens' First Amendment rights might be less robust than those of citizens in certain discrete areas. See Harisiades v. Shaughnessy, 342 U.S. 580, 591-92 (1952) (First Amendment does not protect aliens from deportation because of membership in the Communist Party). Beyond that, the Constitution itself of course bars foreign citizens from holding certain offices. See U.S. CONST. art. I, §§ 2, 3; U.S. CONST. art. II, § 1.

In those many decisions, the Supreme Court has drawn a fairly clear line: The government may exclude foreign citizens from activities "intimately related to the process of democratic self-government." As the Court has written, "a State's historical power to exclude aliens from participation in its democratic political institutions [is] part of the sovereign's obligation to preserve the basic conception of a political community." In other words, the government may reserve "participation in its democratic political institutions" for citizens of this country. When reviewing a statute barring foreign citizens from serving as probation officers, the Court explained that the "exclusion of aliens from basic governmental processes is not a deficiency in the democratic system but a necessary consequence of the community's process of political self-definition."

(As always, emphasis is mine, and case citations deleted for legibility. Continuing:)
We read these cases to set forth a straightforward principle: It 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. It follows, therefore, that the United States has a compelling interest for purposes of First Amendment analysis in limiting the participation of foreign citizens in activities of American democratic self-government, and in thereby preventing foreign influence over the U.S. political process [...]

Plaintiffs also point out that many groups of people who are not entitled to vote may nonetheless make contributions and expenditures related to elections — for example, minors, American corporations, and citizens of states or municipalities other than the state or municipality of the elective office. But minors, American corporations, and citizens of other states and municipalities are all members of the American political community. By contrast, the Supreme Court has said that "[a]liens are by definition those outside of this community."

As for Plaintiffs' arguments about where the line is drawn, the Court explained:
As Members of Congress stated when rejecting a proposal to include lawful permanent residents in § 441e(a)'s prohibition, see, e.g., 148 Cong. Rec. H448-H450 (Feb. 13, 2002) (statements of Reps. Mink, Menendez, Reyes, Morella, and Solis), Congress may reasonably conclude that lawful permanent residents of the United States stand in a different relationship to the American political community than other foreign citizens do. Lawful permanent residents have a long-term stake in the flourishing of American society, whereas temporary resident foreign citizens by definition have only a short-term interest in the national community. Indeed, at oral argument in this case, plaintiffs' counsel could not say that the two plaintiffs here ever want to become U.S. citizens, or to apply for lawful permanent residency. Temporary resident foreign citizens by definition have primary loyalty to other national political communities, many of which have interests that compete with those of the United States. Apart from that, lawful permanent residents share important rights and obligations with citizens; for example, lawful permanent residents may — and do, in large numbers — serve in the United States military. In those two ways — their indefinite residence in the United States and their eligibility for military service — lawful permanent residents can be viewed as more similar to citizens than they are to temporary visitors, and thus Congress's decision to exclude them from the ban on foreign nationals' contributions and expenditures does not render the statute underinclusive. In fact, one might argue that Congress's carve-out for lawful permanent residents makes the statute more narrowly tailored to the precise interest that it is designed to serve — namely, minimizing foreign participation in and influence over American self-government.
B-b-b-b-but!, you might be pained to ask, isn't this totally in conflict with Citizens United, which argued that speech is speech, and if it's independent it can't corrupt anyone, and so it doesn't matter who the speaker is?  

Yes, you're right. It is totally inconsistent and incoherent. (And, of course, no law bars a foreigner from owning a media corporation which runs news, editorial and commentary/advocacy regarding candidates for office.) But thanks to the summary disposition of this case, the Court doesn't have to reconcile these outcomes. It just is.

Originally posted to Adam B on Mon Jan 09, 2012 at 08:38 AM PST.

Also republished by ClassWarfare Newsletter: WallStreet VS Working Class Global Occupy movement, Discussing The Law: TalkLeft's View On Law and Politics, Good News, and Daily Kos.

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