…nited was decided, this prohibition on foreign nationals was challenged in Bluman v. FEC, but the Bluman court upheld the ban on the grounds that foreigners are not members of the American political community. As Part III explains, our campaign finance nationalism has several consequences. One is that it prevents individual states from restricting nonresident campaign contributions. Over the years, several states have tried to place limits on nonr…
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…h then-Judge Brett M. Kavanaugh’s conclusion that Canadian lawyer Benjamin Bluman’s proposed activity was illegal — not just his three proposed $100 campaign contributions but also merely paying to copy a flier supporting President Barack Obama’s reelection to hand out in Central Park. Bluman’s proposed activities were deemed illegal even though he hailed from a closely allied country, was lawfully working in the United States and had proposed spe…
Continue reading…curry favor with the winner. As Justice Kavanaugh wrote in the 2011 case, Bluman v. Federal Election Commission, “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. It follows, therefore, that the United States has a compelling interest for purposes of First Amendment analysis in…
Continue reading…ties intimately related to the process of democratic self-government.” See Bluman v. FEC, 800 F. Supp. 2d 281, 287 (D.D.C. 2011) (internal quotations omitted), aff’d mem., 565 U.S. 1104 (2012). Such exclusion “is part of the sovereign’s obligation to preserve the basic conception of a political community.” Id. (emphasis added). The Commission has approved certain advisory opinion requests to take particular, carefully defined, and limited actions…
Continue reading…n this question, analogizing the ban to the foreign spending ban upheld in Bluman v. FEC. I wonder if the Chief will seek to take this case en banc to the Supreme Court. Speaking of en banc, there is another notable aspect of this case. The court unanimously upholds Alaska’s $500 individual contribution limit and two other contribution limits relying upon existing Ninth Circuit authority. There was a huge fight at the Ninth Circuit a few months ag…
Continue reading…late, I explained how Judge Kavanaugh’s opinion for a three-judge court in Bluman v. FEC opens a huge gaping hole in campaign finance law allowing for foreign governments, entities, and individuals to spend unlimited sums to influence federal elections so long as they avoid words of express advocacy, like “Vote for Stein.” Kavanaugh upheld the foreign spending ban, but construed it for constitutional reasons to apply only to express advocacy.and n…
Continue reading…not. As with the application of Citizens United, these questions are hard. Bluman ignored them entirely. But the most galling part of Bluman’s drive-by statutory vivisection is that it was completely unnecessary. The two Bluman plaintiffs sought to contribute to candidates and to spend money on express advocacy. They expressed no interest in any part of the statute that Judge Kavanaugh casually tossed aside. The court had no need to opine on the r…
Continue reading…Amendment.”… Judge Kavanaugh’s most interesting campaign finance decision, Bluman v. Federal Election Commission, in 2011, appears to cut in the opposite direction, at least at first blush. Writing for a three-judge panel of the Federal District Court in Washington, he said two foreign citizens living in the United States on temporary work visas could not spend money to call for the election of American politicians. Two things are notable about th…
Continue reading…t.” In its motion to dismiss, Concord specifically cited Judge Kavanaugh’s Bluman v. FEC decision regarding the ban on foreign spending on our elections… As Campaign Legal Center and Demos wrote in their review of Kavanaugh’s record, “His interpretation means that the law likely would have covered only a small fraction of the campaign activity attributed to Russian operatives in the 2016 elections.” Another leading election law expert, Professor R…
Continue reading…in our elections violate the First Amendment. As I explained in Politico: Bluman is the authority for the principle that a ban on foreign electioneering does not violate the First Amendment. But in a part of Bluman that has not been much noticed, the three-judge court construed the statute barring foreign election spending to apply only to express advocacy (“Vote for Obama”), not to issue advocacy (“Tell Hillary to show us her emails”). The distr…
Continue reading…affirmed a lower court decision in Bluman v. Federal Election Commission. Bluman upheld federal law barring foreign nationals—in the case of Benjamin Bluman, a foreign national working in New York on a temporary work visa—from spending even fifty cents to print and distribute flyers expressly advocating the reelection of President Obama. Bluman seems to indicate that, despite tensions with the holding in Citizens United that the identity of the s…
Continue reading…ral district court, citing the interest in self-government, disagreed with Bluman, upholding the foreign spending ban. The Supreme Court affirmed without issuing an opinion. Bluman is the authority for the principle that a ban on foreign electioneering does not violate the First Amendment. But in a part of Bluman that has not been much noticed, the three-judge court construed the statute barring foreign election spending to apply only to express a…
Continue reading…ly narrow given the clear statutory definition of expenditure.) Second, in Bluman v. Federal Election Commission, 800 F. Supp. 2d 281, 292 (D.D.C. 2011), aff’d, 565 U.S. 1104 (2012), a three-judge district court in dicta interpreted Congress’s foreign spending ban not to include “issue advocacy:” “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 de…
Continue reading…government than one who is simply a run-of-the-mill foreign national like Bluman. And if you’re wondering how the law defines a “government of a foreign country,” the sentencing guidelines use FARA’s definition. The term “government of a foreign country” includes “any person or group of persons exercising sovereign de facto or de jure political jurisdiction over any country, other than the United States, or over any part of such country, and incl…
Continue reading…not corrupt democracy, a Canadian lawyer living in New York named Benjamin Bluman brought a similar suit. He argued that his independent spending of 50 cents to make flyers and hand them out in Central Park in support of President Barack Obama should not be a crime because he could not corrupt the process. A three-judge district court, in an opinion by conservative D.C. Circuit Judge Brett Kavanaugh, roundly rejected the argument and affirmed the…
Continue reading…ign individuals and entities (which it allowed via a summary affirmance in Bluman v. FEC). I explain all of this in Citizens United and the Illusion of Coherence in the Michigan Law Review. So either Judge Gorsuch does not understand the scope of Citizens United and its holding, or he is trying to soften its harshness by wrongly suggesting Congress has room to legislate spending limits. I don’t believe he would actually uphold any spending limit C…
Continue reading…ed Supreme Court decision just two years afterCitizens United. The case of Bluman v. FEC involved a federal law prohibiting foreign nationals from contributing or spending money in federal, state, or local elections. Two Canadians in the U.S. on temporary visas challenged the prohibition—after all, Citizens United had just a year before waxed poetic about how a ban on corporate political spending violated the prohibition against “distinguishing am…
Continue reading…cluding foreign corporate money) in our elections. So the Supreme Court in Bluman did not allow “foreign corporations” to “spend unlimited amounts of money to influence our elections.” The Court in Citizens United also upheld pretty broad disclosure rules for independent spending and other election-related spending. So to the extent that “dark money” rules are allowing foreign money in, that’s on Congress (or the FEC or the IRS) for that, or it is…
Continue reading…eign money issue to the side. Since then, the Court summarily affirmed the Bluman v. FEC case, upholding the constitutionality of the foreign spending ban (including bans on foreign corporations). Now it may be that foreign money is getting into our elections, but that’s not because the Supreme Court called it kosher. (Byron Tau calls the statement “muddled” because CU did not empower lobbyists. That’s more debatable. The foreign money point is no…
Continue reading…Biggest Danger of Super PACs, CNN Politics, Jan. 9, 2012 This Case is a Trojan Horse, New York Times “Room for Debate” blog, Jan. 6, 2012 (forum on Bluman v. FEC) Read more opeds from 2006-2009, and these from 2010-2011….
Continue reading…titutional analysis of state politics. It defends the principle applied in Bluman v. FEC as an exception to the otherwise universal speaker-neutrality rule of Citizens United, applicable at the state as well as the national level, and to out-of-state as well as foreign outside interests. It does so by drawing parallels between legal efforts to police national and state boundaries in politics, and assessing the competing rights claims of outsiders…
Continue reading…s, CNN Politics, Jan. 9, 2012 This Case is a Trojan Horse, New York Times “Room for Debate” blog, Jan. 6, 2012 (forum on Bluman v. FEC) …
Continue reading…Citizens United doctrine in light of the Court’s more recent decision, in Bluman, to uphold the ban on spending by foreign nationals in our elections. More on that here. UPDATE: Howard Bashman has a roundup of additional stories. What is Justice Stevens up to? It is hard to see how this speech is not timed to have some influence over the Court and what it will do in the Montana case. Let’s put aside the propriety of the retired Justice speaking a…
Continue reading…rt could not summarily reverse if four Justices were prepared to grant cert.”] Maybe the case will be heard as a matter of courtesy in those circumstances. Will the 5-Justice majority have the stomach for CU II? 3. And something else has changed since CU. The Supreme Court summarily affirmed the Bluman case, affirming that sometimes the identity of the speaker in campaign finance does matter. That is, the Court affirmed that the government can kee…
Continue reading…id-for speech about candidates made by non-permanent-residents — regardless of the amount of the payment or of any other circumstances — is narrowly tailored to any potentially compelling government interest in national security or freedom from foreign influence. But the three judges in Bluman don’t share my view on the reasoning. And at least five and maybe all nine of the Supreme Court Justices think that the District Court’s result is correct —…
Continue reading…There was much going on in the election law world today (and the NH primary is tomorrow). To highlight three of my posts from earlier today, I reflected on the Supreme Court’s summary affirmance in Bluman v. FEC (the foreign campaign money case), discussed what is likely to happen in the Texas redistricting case before the Supreme Court, and wrote an oped for CNN entitled, “The Biggest Danger of Super PACs.”…
Continue reading…Campaign Legal Center Democracy 21 When I see a release from the Institute for Justice (which pushed the case) or the plaintiffs, I will link. …
Continue reading…Politico reports on Bluman. My earlier thoughts are here. MORE: Howard rounds up the early stories….
Continue reading…xpected, the Supreme Court issued a summary affirmance this morning in the Bluman v. FEC case, in which the lower court had upheld against first Amendment challenge the federal law barring foreign individuals (even those living legally in the U.S. but who are not permanent residents) from spending money on U.S. election campaigns or contributing money to them. (There were no noted dissents.) As I’ve explained, this came to the Court on an unusual…
Continue reading…to hear the case, but given the timing it could be next term. LULAC, like Bluman, came from a three-judge court, and I have long argued that the three-judge court procedure makes the Court consider much more seriously whether or not to hear these cases. In great part that is because a decision not to hear a case coming on appeal from a three-judge court gives that lower court case precedential value. (This also may provide a strategy for getting…
Continue readingThat’s my contribution to a NYT “Room for Debate” forum on the Bluman v. FEC case and the question whether the ban on foreign spending and contributions to U.S. candidates violates the First Amendment. My earlier piece on this case in The New Republic is here. The case is back on the Supreme Court’s docket for Friday, so we could hear as early as Monday if the Court will take the case. I’ve been expecting a summary affirmance, with a possible dis…
Continue reading…Paul Sherman has written this WSJ oped on Bluman v. FEC. (My own commentary on the case appeared last week in The New Republic.)…
Continue reading…Court does not decide Bluman case involving foreign campaign $; Why the delay? See here….
Continue readingThe Bluman case was on the Supreme Court’s conference list last week. (Background on the issues in the case here.) Because the case came up on an appeal rather than a cert. petition (a rarity outside of election law, but fairly common among election law cases), the Court’s decision to hear or not hear the suit matters. When the Court denies cert., that decision has no precedential value. For example, it does not indicate that the lower court got…
Continue reading…anuary. Further, we may hear as early as Monday if the Court will hear the Bluman foreign campaign spending case. I expect we will also soon have cases dealing with (what I expect will be) DOJ’s failure to preclear South Carolina and Texas’s voter identification laws, as well as a case or more on whether section 5 of the Voting Rights Act remains constitutional. It should be an interesting ride, especially as the 2012 election season gears up even…
Continue reading…urt 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 U…
Continue reading…BNA: “The government has responded to a challenge to the federal law against foreigners’ providing money in U.S. election campaigns with a new motion asking the Supreme Court to dismiss the case or affirm a lower court ruling that upheld the law (Bluman v. Federal Election Commission, U.S., No. 11-275, motion filed 11/14/2011).” You can read the government’s motion to dismiss or affirm here….
Continue reading…Following up on this post, here is the IJ brief and here is the brief of the Illinois Coalition for Immigrant and Refugee Rights and the National Immigrant Justice Center (authored by Viet Dinh)….
Continue reading…So reports BNA on the Bluman case (I have not seen the IJ brief supporting an order for the Court to note probable jurisdiction). The government’s response in this case is currently due Nov. 2….
Continue reading…eports. A snippet: If the Supreme Court allows the lower court decision in Bluman to stand, lower courts and legislatures would conclude that the high court “did not truly mean” what it said in Citizens United, the challengers said. Such a result would mean that bans on independent campaign expenditures “can survive strict scrutiny, and are not off-limits” due to the First Amendment. Attorney Postman told BNA in a Sept. 6 e-mail that the lower cou…
Continue reading…Read the jurisdictional statement (similar to a cert. petition) here. I am watching this one very closely. My earlier coverage is here….
Continue reading…Eugene Volokh links to the documents in the Bluman case. Argument will be before a three judge court in DC on May 12….
Continue reading…w the answer may come sooner rather than later. Check out the complaint in Bluman v. FEC. And the best part from the point of view of plaintiffs’ challenge: they’ve asked for a three-judge court, and if they get it, that means direct appeal to the Supreme Court (not a petition for cert). As I’ve explained in the past, decisions on appeals to the Supreme Court are decisions on the merits, so this means that a Supreme Court decision not to hear the…
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