Bluman v. Fed. Election Comm'n

• Decision Date: 08 August 2011
• Docket Number: Civil No. 10–1766 (BMK)(RMU)(RMC).
• Citation: 800 F.Supp.2d 281
• Parties: Benjamin BLUMAN and Asenath Steiman, Plaintiffs, v. FEDERAL ELECTION COMMISSION, Defendant.
• Court: U.S. District Court — District of Columbia

800 F.Supp.2d 281

Benjamin BLUMAN and Asenath Steiman, Plaintiffs,

v.FEDERAL ELECTION COMMISSION, Defendant.

Civil No. 10–1766 (BMK)(RMU)(RMC).

United States District Court, District of Columbia.

Aug. 8, 2011.

Warren Postman, Jacob M. Roth, Jones Day, Washington, DC, for Plaintiffs.

Adav Noti, David Brett Kolker, Kevin Deeley, Steve Nicholas Hajjar, Federal Election Commission, Washington, DC, for Defendant.

Before: KAVANAUGH, Circuit Judge; URBINA, District Judge; and COLLYER, District Judge.

MEMORANDUM OPINION

KAVANAUGH, Circuit Judge:

Plaintiffs are foreign citizens who temporarily live and work in the United States. They are neither U.S. citizens nor lawful permanent residents; rather, they are lawfully in the United States on temporary work visas. Although they are not U.S. citizens and are in this country only temporarily, plaintiffs want to participate in the U.S. campaign process. They 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 this suit, plaintiffs argue that the federal ban on their proposed activities is unconstitutional. Plaintiffs contend, in particular, 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. We respect the force of plaintiffs' arguments, as ably advanced by plaintiffs' counsel. Under the relevant Supreme Court precedents, however, we must disagree with plaintiffs' submission. The Supreme Court has long held that the government (federal, state, and local) may exclude foreign citizens from activities that are part of democratic self-government in the United States. For example, the Supreme Court has ruled that the government may bar aliens from voting, serving as jurors, working as police or probation officers, or teaching at public schools. Under those precedents, the federal ban at issue here readily passes constitutional muster. 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.¹

LEGAL BACKGROUND

As political campaigns grew more expensive in the latter half of the 20th Century, especially with the advent of costly television advertising, money became more important to the campaign process—in terms of both contributions to candidates and political parties and expenditures advocating for or against candidates. As money became more important to the election process, concern grew that foreign entities and citizens might try to influence the outcome of U.S. elections. 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.

But those restrictions did not eliminate the possibility of foreign citizens influencing American elections by, for example, soft-money donations to political parties as opposed to direct contributions to candidates. Activities by foreign citizens in the 1996 election cycle sparked public controversy and an extensive investigation by the Senate Committee on Governmental Affairs. The Committee found that foreign citizens had used soft-money contributions to political parties to essentially buy access to American political officials. See S.Rep. No. 105–167, at 781–2710, 4619–5925 (1998). It also found that the Chinese government had made an effort to “influence U.S. policies and elections through, among other means, financing election campaigns.” Id. at 47; see also id. at 2501–12.

In response, Congress eventually passed and President George W. Bush signed legislation that, among many other things, strengthened the prohibition on foreign financial involvement in American elections. See Bipartisan Campaign Reform Act of 2002, Pub.L. No. 107–155, § 303, 116 Stat. 81, 96. This new Act 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.

The relevant provision of the statute as amended in 2002 reads:

(a) Prohibition

It shall be unlawful for—

(1) a foreign national, directly or indirectly, to make—

(A) a contribution or donation of money or other thing of value, or to make an express or implied promise to make a contribution or donation, in connection with a Federal, State, or local election;

(B) a contribution or donation to a committee of a political party; or

(C) an expenditure, independent expenditure, or disbursement for an electioneering communication (within the meaning of section 434(f)(3) of this title); or

(2) a person to solicit, accept, or receive a contribution or donation described in subparagraph (A) or (B) of paragraph (1) from a foreign national.

2 U.S.C. § 441e(a).² The statute continues to define “foreign national” to include all foreign citizens except those who have been admitted as lawful permanent residents. Id. § 441e(b).

As relevant here, we interpret the statute to bar foreign nationals—that is, all foreign citizens except those who have been admitted as lawful permanent residents of the United States—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 FEC v. Wisconsin Right to Life, Inc., 551 U.S. 449, 127 S.Ct. 2652, 168 L.Ed.2d 329 (2007); Emily's List v. FEC, 581 F.3d 1 (D.C.Cir.2009). This statute, as we interpret it, does not bar foreign nationals from issue advocacy—that is, speech that does not expressly advocate the election or defeat of a specific candidate. The line between prohibited express-advocacy expenditures and permitted issue-advocacy expenditures for purposes of this statute is the line drawn by the Supreme Court in Wisconsin Right to Life: An express-advocacy expenditure is one that funds “express campaign speech” or its “functional equivalent.” 551 U.S. at 456, 127 S.Ct. 2652 (controlling opinion of Roberts, C.J.). An advertisement is the “functional equivalent” of express advocacy if it “is susceptible of no reasonable interpretation other than as an appeal to vote for or against a specific candidate.” Id. at 469–70, 127 S.Ct. 2652.

FACTUAL AND PROCEDURAL BACKGROUND

The plaintiffs in this suit—Benjamin Bluman and Asenath Steiman—are foreign citizens who live and work in the United States on temporary visas. Bluman is a Canadian citizen who has lawfully resided in the United States since November 2009 on a temporary work visa. From September 2006 to June 2009, he lawfully resided in the United States on a temporary student visa while attending law school. His current visa will allow him to stay in the country until November 2012, at which time he plans to apply for a second three-year term. He is an associate at a law firm in New York City.

Bluman wants to contribute to three candidates: Representative Jay Inslee of Washington; Diane Savino, a New York state senator; and President Obama. He also wants to print flyers supporting President Obama's reelection and to distribute them in Central Park.

Steiman is a dual citizen of Canada and Israel. She has a temporary visa authorizing her to live and work in the United States for a period of three years, through June 2012, but that term could be extended for up to seven years. She is a medical resident at a hospital in New York.

Steiman wants to contribute money to Senator Tom Coburn; a yet-to-be-determined candidate for the Republican nomination for President in 2012; the National Republican Senatorial Committee; and the Club for Growth, an independent organization that advocates with respect to certain issues and candidates.

All of plaintiffs' desired activities are barred by 2 U.S.C. § 441e(a) as amended in 2002.

Plaintiffs filed this complaint alleging that the statutory bar on their proposed activities violates the First Amendment to the United States Constitution. The Federal Election Commission moved to dismiss the suit for failure to state a claim. See Fed.R.Civ.P. 12(b)(6). Plaintiffs moved for summary judgment.

DISCUSSION

I. Standard of Scrutiny

Political contributions and expenditures are acts of political expression and association protected by the First Amendment. According to plaintiffs, regulation of those activities therefore must meet First Amendment strict scrutiny standards. See Buckley v. Valeo, 424 U.S. 1, 25, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976). The FEC counters 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. We think the question is somewhat more complex than either side suggests, not only because the statute implicates both the First Amendment and national security, but also because it includes both a limit on contributions and a limit on expenditures, which have traditionally been subject to different levels of First Amendment scrutiny. See McConnell v. FEC, 540 U.S....