I have written this commentary for The New Republic. It begins:
Let’s say that the leader of a foreign country, one with military or economic interests adverse to the United States, took a look at our 2012 elections and decided to spend millions of dollars in hopes of determining which party held control over the House, the Senate, or the White House. Most of us would consider that scenario highly distressing, to say the least. And current federal law does indeed bar most foreign individuals, entities, and governments from spending money to influence U.S. elections and contributing to candidates.
This isn’t a law that inspires much opposition in Washington: Neither party asserts that foreigners have a First Amendment right to participate in our elections. But according to the twisted logic of the Supreme Court’s recent decision in Citizens United v. FEC, the law’s constitutionality has been called into question.
Fortunately, the Court may be wise enough not to use its own flawed decision as a future roadmap. On Friday, Supreme Court justices will meet in a private conference to consider whether to hear Bluman v. FEC, a case that concerns the rights of foreign non-citizens living in the U.S to spend money in U.S. elections. Whether or not the Court sets the case for a full hearing, it is likely to conclude that our current law does not violate the First Amendment rights of foreigners. That would be the right result. But it would require ignoring the precedent of Citizens United v. FEC, which upheld similar rights for corporations.
it concludes:
In their briefs before the Supreme Court, the Bluman plaintiffs point to some of my earlier writing noting the contradiction between the logic of Citizens United and the government’s position in this case. They—though not most of the campaign finance deregulation lobby, which (aside from the Institute for Justice) has sat out the case—urge the Court to hear the case, rather than simply affirm the lower court, to bring additional coherence to the law. But what the current challenge makes clear is that the Supreme Court has erred—not in its failure to extend election spending rights to foreign nationals, but in the faulty reasoning behind its decision in Citizens United.