Writing for the Project on Government Oversight (POGO), Ben Freeman argues that my recent op-ed in The Wall Street Journal regarding Bluman v. FEC is “deceptively titled” and uses a “bait-and-switch tactic” to con people into believing the Congress shouldn’t have the power to ban political contributions and expenditures by noncitizens who lawfully reside in the United States.


censoredMy op-ed was titled “Do Foreigners Deserve Free-Speech Rights?” As Freeman sees it, the real question is “Do American Citizens Deserve Sovereignty?” The Institute for Justice believes that the answer to both questions is “yes.” Where we disagree with Freeman is on whether acts of peaceful political expression and association by noncitizens are a threat to American sovereignty.


The way we see it—and the way the U.S. Supreme Court saw it in Citizens United v. FEC—the First Amendment ensures a wide-open political marketplace where voters can listen to diverse points of view from diverse speakers. We believe this includes speakers who were not born in the United States but who live here now. In this system, sovereignty remains with American citizens because American citizens are the ones who get a vote.


The real threat to American sovereignty is not that someone born outside the United States might present an argument that voters find compelling, but rather that government will use its coercive power to prevent voters from gathering information from certain distrusted sources before making their political choices. This is what the Supreme Court in Citizens United rightfully derided as censorship for the purpose of thought control.


Freeman doesn’t engage at all with the Supreme Court’s ruling in Citizens United and, indeed, thinks this whole First Amendment argument is a bait and switch. To Freeman, this case has nothing to do with speech, and is instead just about preventing foreigners from using money to influence American politics:


The simple fact is that the prohibition on foreign national contributions does not actually restrict speech at all. It in no way restricts non-U.S. citizens from engaging in issue advocacy or speaking out on public policies— it simply does not allow them to do so with money.


With all due respect to Freeman, the Supreme Court has long rejected the view that the First Amendment protects only the uncompensated spoken word. For over 35 years, the Supreme Court has held that the First Amendment is implicated whenever individuals are prevented from pooling money to engage in political speech. And it could hardly be otherwise. Freeman’s approach would give the government virtually unlimited power to silence speech, because virtually every type of communication requires the use of resources amassed in the commercial marketplace.


Freeman suggests that the First Amendment issue isn’t as cut-and-dry as all that by pointing to another line of cases:


In prior cases, the Court found that foreign citizens may be barred from activities “intimately related to the process of democratic self-government,” and aren’t eligible to perform functions inherent to democratic government, like serving as jurors or police officers, because “the right to govern is reserved to citizens.”


This was the argument made by the government in Bluman and accepted by the three-judge panel below. But the argument fails, most notably, because not a single one of those earlier cases involved a claim under the First Amendment. Instead, all of those cases involved equal-protection claims by noncitizens seeking to hold positions of actual government authority. But there is a world of difference between giving noncitizens control of the coercive power of government and permitting noncitizens to attempt to persuade others through political advocacy. The former may be a threat to sovereignty, but the latter surely isn’t.


It is also irrelevant for First Amendment purposes that other countries—like Canada and Israel, the plaintiffs’ home countries—don’t permit noncitizens to make political contributions or expenditures. Canada and Israel don’t have constitutional protections for speech that are at all comparable to America’s First Amendment. For Americans, this is generally a point of pride. But as long as we’re looking at other western-style democracies, let’s also look at Australia, which has virtually no campaign finance laws and permits unlimited campaign contributions not just from non-permanent resident aliens, but from aliens, corporations, and even governments outside of Australia. We are aware of no evidence that Australia’s hands-off approach to campaign financing has done that country any harm. Indeed, according to Transparency International, Australia is perceived as substantially less corrupt than the United States.


Freeman’s failure to provide any actual evidence to justify the ban on political contributions and expenditures by noncitizens is consistent with the approach taken by the three-judge panel and by other commentators who have supported the panel’s ruling. But it is not consistent with the First Amendment. The Supreme Court has repeatedly made clear that speculation and conjecture are not a sufficient basis to restrict speech. Government must justify such restrictions with actual evidence, not simply make ominous allusions to Nazi Germany or Mahmoud Ahmadinejad.


Ultimately, though, even if every claim Freeman made in response to my op-ed were accurate, the Supreme Court should still take this case. As documented in the amicus brief in support of review by the Illinois Coalition for Immigrant and Refugee Rights, there are millions of non-permanent resident aliens who reside in the United States. Until now, no court has ever held that these lawful residents were entitled to anything less than the full protection of the First Amendment. If these people are to be stripped of their First Amendment right to engage in peaceful political advocacy because of vague and unsupported concerns about “sovereignty,” that decision should come only after serious consideration by the highest court in the land.


The Supreme Court’s next opportunity to take up the case will occur on January 9.