Benjamin Bluman and Asenath Steiman, Plaintiffs, v. Federal Election Commission, Defendant

Notable Items:

§ 441e(a) as we interpret it, see supra pp. 4-5, does not restrain foreign nationals from speaking out about issues or spending money to advocate their views about issues. [Russia regarding its invasion of Ukraine. Communist China regarding defense of Taiwan. etc.]
SCOTUSBlog entry for certiorari documents and summary affirmation.
2023-06-27: Nationwide Momentum Grows To Stop Political Spending by Foreign-Influenced U.S. Corporations at The Center for American Progress.
2022-06-23: Rereading Bluman v. Federal Election Commission at The Knight First Amendment Institute
2021: Foreign-Influence Laws: The Constitutionality of Restrictions on Independent Expenditures by Corporations with Foreign Shareholders (PDF)
2018-09-07: Kavanaugh Decision Created Opening for Foreign Interference in U.S. Elections at The Campaign Legal Center. Note: Bluman was cited by Concord Management and Consulting, one of 16 Russian individuals or companies indicted by a federal grand jury in February [2018], in support of its motion to dismiss the indictment.
2015: What's at Stake?: Bluman v. Federal Election Commission and the Incompatibility of the Stake-Based Immigration Plenary Power and Freedom of Speech (PDF)
2012-11-08: Richard L. Hasen Bluman v. F.E.C. Is a Trojan Horse.

Plaintiff: Benjamin Bluman and Asenath Steiman
Defendant: Federal Election Commission
Venue: District of Columbia Circuit Court
Opinion of the Court: Need entry for

Issue(s) Before the Court:

... this case raises a preliminary and foundational question about the definition of the American political community and, in particular, the role of foreign citizens in the U.S. electoral process.

Plaintiff Claim(s):

... that foreign citizens lawfully resident in the United States have a right under the First Amendment to the United States Constitution to contribute to candidates and political parties and to make express-advocacy expenditures.

Defendant Claim(s):

... that § 441e(a) manifests a congressional judgment on a matter of foreign affairs and national security, and is thus subject to deferential rational basis review.

Holding(s) and Disposition:

Held: Under those precedents, the federal ban at issue here readily passes constitutional muster.
Disposition: We therefore grant the FEC's motion to dismiss plaintiffs' complaint under Federal Rule of Civil Procedure 12(b)(6), and we deny plaintiffs' motion for summary judgment.

Material Facts:

Plaintiffs are foreign citizens who temporarily live and work in the United States on temporary work visas.
Plaintiffs seek to donate money to candidates in U.S. federal and state elections, to contribute to national political parties and outside political groups, and to make expenditures expressly advocating for and against the election of candidates in U.S. elections.
Plaintiffs are barred from doing so, however, by federal statute. See 2 U.S.C. § 441e(a).
In 1966, Congress sought to limit foreign influence over American elections by prohibiting agents of foreign governments and entities from making contributions to candidates. See Pub.L. No. 89-486, § 8, 80 Stat. 244, 248-49 (1966).
In 1974, Congress expanded that ban and barred contributions to candidates from all "foreign nationals," defined as all foreign citizens except lawful permanent residents of the United States. See Federal Election Campaign Act Amendments of 1974, Pub.L. No. 93-443, § 101(d), 88 Stat. 1263, 1267.
Bipartisan Campaign Reform Act of 2002, Pub.L. No. 107-155, § 303, 116 Stat. 81, 96 ... expanded the ban on foreign nationals' financial influence on elections by banning foreign nationals both from making expenditures and from making contributions to political parties, thus supplementing the pre-existing ban on foreign nationals making contributions to candidates.
A full recounting of the facts is available below

Procedural History:

Rationale

Majority Opinion (xxx)

In order to pass muster under strict scrutiny, a statute must be narrowly tailored to advance a compelling government interest.
Plaintiffs contend that § 441e(a) cannot satisfy that exacting standard. We disagree.
... 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.
Political contributions and express-advocacy expenditures are an integral aspect of the process by which Americans elect officials to federal, state, and local government offices.
... it is undisputed that the government may bar foreign citizens from voting and serving as elected officers.
It follows that the government may bar foreign citizens from participating in the campaign process that seeks to influence how voters will cast their ballots in the elections.
A statute that excludes foreign nationals from political spending is therefore tailored to achieve that compelling interest.
A full description of the rationale is available below

Majority Full Argument

See Material Facts
See Procedural History
As relevant here, we interpret the [2002] statute to bar foreign nationals
- from contributing to candidates or political parties;
- from making expenditures to expressly advocate the election or defeat of a political candidate; and
- from making donations to outside groups when those donations in turn would be used to make contributions to candidates or parties or to finance express-advocacy expenditures. See generally >i>FEC v. Wisconsin Right to Life, Inc., 551 U.S. 449 (2007); Emily's List v. FEC, 581 F.3d 1 (D.C. Cir. 2009).
This statute, ... , does not bar foreign nationals from issue advocacy — that is, speech that does not expressly advocate the election or defeat of a specific candidate. [See Wisconsin Right to Life, Inc.]
I. Standard of Scrutiny
Political contributions and expenditures are acts of political expression and association protected by the First Amendment.
In order to pass muster under strict scrutiny, a statute must be narrowly tailored to advance a compelling government interest.
Plaintiffs contend that § 441e(a) cannot satisfy that exacting standard. We disagree.
II. The Merits
... foreign citizens may be denied certain rights and privileges that U.S. citizens possess. For example[:] voting, serving as jurors, working as police or probation officers, or working as public school teachers.
... aliens' First Amendment rights might be less robust than those of citizens in certain discrete areas.
The government may exclude foreign citizens from activities "intimately related to the process of democratic self-government." Bernal v. Fainter, 467 U.S. 216, 220 (1984); see also Gregory v. Ashcroft, 501 U.S. 452, 462 (1991); Cabell v. Chavez-Salido, 454 U.S. 432 (1982) at 439-40.
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.
... 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.
Political contributions and express-advocacy expenditures are an integral aspect of the process by which Americans elect officials to federal, state, and local government offices.
... it is undisputed that the government may bar foreign citizens from voting and serving as elected officers.
It follows that the government may bar foreign citizens from participating in the campaign process that seeks to influence how voters will cast their ballots in the elections.
... the activities of democratic self-government to include functions as unrelated to the electoral process as teaching in public schools and serving as police and probation officers.
... spending money to influence voters and finance campaigns is at least as (and probably far more) closely related to democratic self-government than serving as a probation officer or public schoolteacher.
Thus, our conclusion here follows almost a fortiori from those cases.
[Plaintiff Contentions]
Plaintiffs ... contend that the right to speak about elections is different from the right to participate in elections.
§ 441e(a) as we interpret it, see supra pp. 4-5, does not restrain foreign nationals from speaking out about issues or spending money to advocate their views about issues.
It restrains them only from a certain form of expressive activity closely tied to the voting process — providing money for a candidate or political party or spending money in order to expressly advocate for or against the election of a candidate. See First Nat'l Bank of Boston v. Bellotti, 435 U.S. 765, 788 n. 26 (1978)
Plaintiffs further contend that § 441e(a)'s restrictions on contributions and expenditures cannot be justified by the longstanding ban on foreign citizens voting in U.S. elections because the statutory restrictions here are not tied to the right to vote.
The statute ... serves the compelling interest of limiting the participation of non-Americans in the activities of democratic self-government.
A statute that excludes foreign nationals from political spending is therefore tailored to achieve that compelling interest.
Plaintiffs also point out that many groups of people who are not entitled to vote may nonetheless make contributions and expenditures related to elections ....
But minors, American corporations, and citizens of other states and municipalities are all members of the American political community.
Plaintiffs argue that the statute, as a measure designed to limit foreign influence over American self-government, is underinclusive and not narrowly tailored because it does not prohibit contributions and expenditures by lawful permanent residents.
... 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.
... 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.
Plaintiffs further contend that the statute is underinclusive and not narrowly tailored because it permits foreign nationals to make contributions and expenditures related to ballot initiatives.
... Congress may proceed piecemeal in an area such as this involving distinctions between citizens and aliens. See Buckley v. Valeo (1976), 424 U.S. at 105; Mathews v. Diaz (1976) , 426 U.S. at 82-84
Plaintiffs also suggest that Congress's ban on foreign participation in the campaign process is the product of jingoistic sentiment in the United States Congress and thus should not be accepted by the courts.
... Congress's most recent legislation on this issue was based on a factual record collected in the aftermath of the 1996 elections and Congress's genuine concern about foreign influences on U.S. elections.
[Limitations]
... we note three important limits to our holding in this case
- ... we do not decide whether Congress could prohibit foreign nationals from engaging in speech other than contributions to candidates and parties, express-advocacy expenditures, and donations to outside groups to be used for contributions to candidates and parties and express-advocacy expenditures.
- we caution the government that seeking criminal penalties for violations of this provision — which requires that the defendant act "willfully," see 2 U.S.C. §§ 437g(a) (5)(C), 437g(d)(1)(A) — will require proof of the defendant's knowledge of the law. See United States v. Moore, 612 F.3d 698, 702-04 (D.C. Cir. 2010) (Kavanaugh, concurring); see also Staples v. United States, 511 U.S. 600 (1994).
The core of the rationale is available above