Congress Shall Make No Law...
    10:26 PM

    At the Institute for Justice, we want the message of liberty to reach the widest-possible audience. So when we were approached by a website that translates American legal writing into Slovenian and asked if they could reprint one of our Make No Law blog posts about media censorship, well, how could we refuse?


    For anyone who is interested, the translation is available here. And if any of our readers are Slovenian, let us know how jokes about Lake Wobegon play in Ljubljana.

    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.

    My colleague Paul Sherman has an op-ed in The Wall Street Journal today making the case for why the U.S. Supreme Court should take up Bluman v. FEC, a First Amendment challenge to a federal law that prohibits noncitizens, even those who lawfully live and work in the United States, from spending any money in candidate elections.  The law is so broad that it even prohibits printing up and distributing flyers advocating the election of a candidate.  Here’s an excerpt from the op-ed:


    As Justice Anthony Kennedy eloquently expressed it in his majority opinion in Citizens United: “When Government seeks to use its full power, including the criminal law, to command where a person may get his or her information or what distrusted source he or she may not hear, it uses censorship to control thought. This is unlawful. The First Amendment confirms the freedom to think for ourselves.”


    The Justices who signed on to Justice Kennedy’s opinion should apply that same reasoning to Bluman. Those who instead agree with retired Justice John Paul Stevens’ dissent—which decried the application of the First Amendment to entities that have “no consciences, no beliefs, no feelings, no thoughts, no desires”—should recognize that noncitizens living in this country do have those qualities and are entitled to the First Amendment’s protection.


    Over the past five years, the Supreme Court has been sharply divided on many campaign-finance questions. Whether Congress has the power to ban peaceful political speech by people who lawfully live and work in the United States should not be one of them.


    Wall Street Journal subscribers can read the whole thing here.


    For more information on Bluman v. FEC, read our earlier coverage here and here.

    Readers of Make No Law may recall that the Institute for Justice recently filed a brief in Bluman v. FEC, urging the U.S. Supreme Court to hear that case, a challenge to the federal prohibition on political spending by noncitizens. Now election-law scholar Rick Hasen has posted a commentary at The New Republic, provocatively titled “Will Foreigners Decide the 2012 Election? The Extreme Unintended Consequences of Citizens United.” In it, Hasen argues that the U.S. Supreme Court should reject this challenge or uphold the law. But Hasen’s argument is thin on both the facts and the law, and ultimately fails to make a compelling case for the Supreme Court to break new ground by holding, for the first time ever, that government may censor the speech of noncitizens lawfully residing within the United States.



    As a threshold matter, Hasen’s argument is notably silent on the actual facts of the case, probably because they aren’t nearly as salacious as his portrait of Mahmoud Ahmadinejad spending money in American elections. The plaintiffs are a Canadian lawyer and a Canadian-Israeli doctor, both of whom lawfully live and work in the United States. They want to make modest, limited contributions to political candidates and parties and to make modest expenditures on their own political speech (one actually wants to distribute fliers in Central Park urging the reelection of President Obama, which is currently illegal). Hasen makes no attempt to justify the law as it applies to these entirely harmless activities by people who live, work, and pay taxes in the United States.


    In addition to omitting any facts about the plaintiffs, Hasen’s argument also ignores the fact that foreigners routinely speak out in American politics, to no ill effect. Foreigners, and even foreign governments, are permitted to spend unlimited amounts lobbying Congress. Foreign publications like The Economist routinely endorse American presidential candidates, and the UK paper The Guardian actually urged British citizens to send money to groups whose political efforts would indirectly benefit Democratic presidential candidate John Kerry. Foreigners are also permitted to make unlimited donations of volunteer services, no matter how valuable, as when Elton John volunteered as a performer at an event that raised $2.5 million for then-Senator Hillary Clinton’s presidential campaign. Hasen makes no attempt to square his predictions of “distressing” consequences if foreigners living within the United States are allowed to make political contributions or expenditures with the fact that none of those consequences have followed from the significant amounts of foreign speech that are already permitted.


    Hasen’s silence on these points is not surprising, because there is not a single legal precedent—not one—that has ever held that foreigners lawfully living within the United States do not enjoy the full protection of the First Amendment. The only case Hasen cites to support his position is the Supreme Court’s ruling in Caperton v. A.T. Massey Coal Co., in which the Supreme Court, per Justice Kennedy, held that an elected judge was required to recuse himself from hearing a case in which one of the litigants had made large independent expenditures to support his election. That case had nothing to do with foreign speakers, but Hasen claims that it runs directly contrary to the teaching of Citizens United that government is prohibited from limiting independent political speech.


    The problem with Hasen’s legal argument is that Caperton did not involve any limitation on political speech. There was never any question as to whether government could limit independent spending in support of electing a judge; the only question was whether the judge could then hear a case involving that spender. Moreover, the claim that this narrow due-process decision has anything to do with elections outside the judicial context ignores the fact that judges and legislators play entirely different roles in our system of government. Judges are elected to serve as neutral magistrates, not as representatives of the people, and due process requires that they be impartial. Legislators, by contrast are expected to be partial. Simply put, there is no contradiction between the two decisions, which is hardly surprising as Justice Kennedy wrote both of them less than a year apart.


    Fundamentally, however, our disagreement with Hasen isn’t about the law. Indeed, the legal precedent is so overwhelmingly in favor of permitting the Bluman plaintiffs to speak that the Supreme Court would have to break entirely new ground to find cause to restrict them. At its core, our disagreement with Hasen is about competing visions of voters and government. Hasen is apparently deeply concerned that voters, if exposed to too much of the wrong type of political speech, will make foolish choices at the polls, and believes that government should be permitted to censor speech to prevent that. We believe that this risk was contemplated by the Framers of the First Amendment, who wisely recognized that no government could be trusted with the power to decide which speakers or what speech a voter could consider before casting his ballot.


    No matter what the Supreme Court decides in Bluman v. FEC, the answer to Prof. Hasen’s question—will foreigners decide the 2012 election?—is “no.” American voters will decide the 2012 election, just as they decide every election. The real question is: Will the federal government be permitted to continue prohibiting American voters from considering foreigners’ speech before casting their ballots?