Green cardholders should have a First Amendment right to make contributions to candidates

PAUL SHERMAN | NYT SYNDICATE

ON Friday the United States Supreme Court will meet to decide whether to hear Bluman v. F.E.C., a First Amendment challenge to a federal law that prohibits non-citizens living in the United States (but who don’t have green cards) from making contributions to American political candidates or from spending money on independent speech to influence elections.

The lead plaintiff, Benjamin Bluman, is a Canadian lawyer who lawfully lives in New York City. He is legally prohibited from paying for leaflets he planned to distribute urging the re-election of President Obama.

The case raises fundamental questions about the scope of the First Amendment. Do non-citizens who lawfully reside in this country have a First Amendment right to advocate the defeat or election of American political candidates? And do American voters have a First Amendment right to hear what non-citizens have to say about our politics? Last August, a panel of three federal judges in Washington answered both these questions with a resounding ìno.î That was a mistake, and the Supreme Court should correct it.

While it may sound surprising that the First Amendment could protect electoral advocacy by noncitizens, including political contributions and expenditures, the argument is grounded in precedent. The Supreme Court has held for over 35 years that the First Amendment protects the right to make political contributions and expenditures.

Moreover, courts have long held that non-citizens who lawfully reside within the United States are entitled to the full protection of the First Amendment. The plaintiffs’ argument in Bluman simply combines these two strands of precedent.

Non-citizens who have permanent residency are allowed to make contributions and political expenditures.

Allowing lawful temporary residents to do the same, on the same terms as United States citizens, would also reflect the general rule that the First Amendment’s protections do not vary based on the identity of the speaker.

That belief was at the center of the Supreme Court’s ruling in Citizens United v. F.E.C., which held that Congress lacked the power to prohibit corporations from spending money to influence federal elections.

The reasoning of Citizens United applies with even greater force to noncitizens who lawfully reside in the United States. Whatever one thinks of that ruling, the most common criticism against it that corporations are not people certainly doesn’t apply to the millions of non-citizens affected by the law, as cited by the Illinois Coalition for Immigrant and Refugee Rights in its amicus brief. Even critics of the decision, like the election-law scholar Richard L. Hasen, have argued that the only way to rule against the plaintiffs in Bluman is to ignore that decision.

Precisely what the three-judge panel did last August. Rather than engaging with Citizens United or the rest of the Supreme Court’s campaign finance jurisprudence, the panel turned to a different line of cases holding that non-citizens could be prohibited from holding elective office or serving as police officers or public school teachers. Based on these cases, the panel concluded that the ban on noncitizen campaign activity was a permissible means of preventing foreign influence over elections in the United States.

The cases upon which the panel relied establish that, with regard to holding actual positions of government authority, non-citizens can be treated differently from citizens. But those cases have no direct bearing on the First Amendment questions presented in Bluman. Nobody, foreign or otherwise, has a First Amendment right to hold elective office.

Moreover, there is a world of difference between actually wielding government authority and merely attempting to influence the electoral process. The Supreme Court has repeatedly stated that the only reason sufficiently powerful to justify restrictions on efforts to influence the electoral process is the prevention of quid pro quo corruption.

The panel, however, concluded that foreigners may be prohibited from participating in American politics, not because they are corrupt, but simply because they are foreign. That conclusion breaks entirely new First Amendment ground and, for that reason alone, is worthy of Supreme Court review.

The panel’s belief that political advocacy by non-citizens poses some sort of distinctive threat is also belied by the evidence. One need look no further than politics at the state level. United States citizens are permitted to speak out for or against candidates from any state in the nation, even candidates they are not eligible to vote for, yet proponents of the restriction on noncitizen speech have not shown that this wide open marketplace of ideas has put any state’s politicians in thrall to outof- state interests. This is not surprising.

No matter how loudly non-citizens may promote or oppose candidates, those candidates will ultimately be judged by voting citizens, to whom they must be responsive.

(Paul Sherman is a lawyer at the Institute for Justice, a libertarian organization that focuses on civil liberties.)