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.
My 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?
On her blog, University of Wisconsin Law School professor Ann Althouse (in whose class I happily sat as a law student), pens a sharp critique of Justice John Paul Stevens and his dissent (and subsequent celebration of that dissent in his new book, Five Chiefs) in the Citizens United case. From critiquing Stevens on his focus on the identity of the speaker in First Amendment cases to dismantling his belief that the government may constitutionally limit speech in order to ensure that people don’t get the wrong ideas about things, Professor Althouse succinctly and powerfully refutes Stevens’ dissent and the position of many who think Citizens United was wrongly decided. It’s an important analysis that deserves the widest possible dissemination. Check it out.
Professor Brad Smith, chairman of the Center for Competitive Politics, has an excellent, short op-ed in USA Today discussing calls for stricter lobbying regulations. As Smith notes, lobbyists like Jack Abramoff are only a symptom of a more fundamental problem, one that can’t be addressed through laws that burden the First Amendment right to lobby the government:
The problem is power, and the government has too much of it. When the government spends $3.6 trillion dollars annually, including substantial amounts trying to pick "winners" in green industries or bailing out companies and even whole industries; when it operates a tax code designed to "nudge" people to preferred activities and purchases; when it claims the right to regulate every aspect of your life—then you are going to have lobbyists seeking to influence what that government does. Until the power is gone, the lobbyists, and the favoritism that creates them, will remain.
Read the whole thing.
In an emergency ruling issued yesterday, U.S. District Court Judge James A. Teilborg granted a motion by the Institute for Justice to stop the Town of Fountain Hills, Ariz., from enforcing burdensome campaign finance laws against a woman who just wanted to hold grassroots protests about her town’s issuing new bonds.
In early October, political activist and Fountain Hills resident Dina Galassini emailed friends urging them to join her in two grassroots protests opposing her town’s issuance of nearly $30 million in new bonds, and encouraging them to bring homemade signs with messages like “Keep Property Taxes Low” and “Vote NO on the Bond.” Almost immediately she received a letter from the town clerk telling her to stop speaking until she had registered with the town as a “political committee” under Arizona’s campaign finance laws.
“I felt strongly from the beginning that the position Fountain Hills had put me in was wrong,” Dina said. “I am overjoyed the Court has protected my right to gather together with my friends and neighbors to speak our minds without having to register with the government.”
With the help of the Institute for Justice (IJ), Dina filed a lawsuit in U.S. District Court for the District of Arizona, asking for an emergency order that would prevent the town from punishing Dina under the campaign finance laws if she goes forward with her protests. Judge Teilborg entered that order, finding that there were “serious questions as to the constitutionality of the statutes at issue” and that those statues threatened Dina’s First Amendment rights.
“Yesterday’s decision was very important because it protects Dina’s right to speak and to associate with others at the time it matters most: during the heat of an election,” said IJ-Arizona Staff Attorney Paul Avelar. “Campaign finance laws are difficult to understand and create traps for the unwary. The judge understood that and enjoined the law.”
The emergency order extended yesterday is just the first step in this case. IJ will now move on to litigating the full merits and demonstrate again how these laws inhibit the ability of ordinary Americans to speak and participate in the political process. The goal of the case is to free all Arizonans to speak about politics without the threat of prosecution.
“In America, the only thing you should need to speak is an opinion. Unfortunately, under campaign finance laws, you also need an attorney,” said IJ Senior Attorney and lead counsel in the case Steve Simpson. “The Supreme Court recognized in Citizens United that complicated laws can suppress speech even by well-funded groups. We are gratified that the judge in this case recognized the same thing is true for grassroots speech by ordinary Americans.”
The case, Galassini v. Town of Fountain Hills, is the latest in IJ’s Citizen Speech Campaign, a national effort to restore full protection to political speech.
The full text of the ruling is available below the fold.
Peter Nelson, director of public policy at the Center for the American Experiment in Minneapolis, had a great oped on the costs of disclosure in the Minneapolis Star Tribune last week. Be sure to check it out. Here’s a taste:
In my election law seminar in law school, I recall an interesting discussion on the impact of disclosure on professors. Whether the threat to their job is real or perceived, politically conservative professors tend to hide their beliefs until they get tenure. Disclosure, of course, compromises their right to keep their politics private. The Supreme Court has protected groups like the NAACP when there was a reasonable probability of threats and harassment.
The burden of disclosure on First Amendment rights is even greater when tied to a single, controversial issue on a ballot. It's one thing to be linked to the beliefs of a candidate or a party when no one expects agreement down the line; it's quite another thing to be tied to a single issue where there is no question about your position.
For what it’s worth, I was in that election law seminar with Peter, and it was a very interesting discussion. There seemed to be a feeling, even among some more liberal participants, that in an age when you can know someone’s political contributions through a Google search, disclosure truly can chill a person’s speech.
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.