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On October 19, 2010, two foreign nationals filed suit in the U.S. District Court for the District of Columbia challenging the constitutionality of 2 U.S.C. §441e and its implementing regulations at 11 CFR 110.20, which prohibit contributions and expenditures by foreign nationals. The Plaintiffs asked the court to declare §441e and 11 CFR 110.20 unconstitutional as applied to foreign nationals lawfully residing and working in the United States, and to enjoin the Commission from enforcing the statute or the regulations against such persons.
On August 8, 2011, the court dismissed the Plaintiff's challenge to the constitutionality of the prohibition on foreign nationals making contributions or expenditures in connection with U.S. elections. The court denied the plaintiffs’ motion for summary judgment and granted the FEC’s motion to dismiss the case.
Benjamin Bluman and Dr. Asenath Steiman (Plaintiffs) are both foreign nationals who lawfully live and work in the United States. Both Plaintiffs wish to express their political views by making contributions to candidates for office in the United States, including federal candidates . Current federal law and Commission regulations prohibit foreign nationals (other than those who have been admitted to the United States for permanent residence) from “directly or indirectly” making “a contribution or donation of money or other thing of value…in connection with a federal, state or local election;” making “a contribution or donation to a committee of a political party;” or making an “expenditure,” “independent expenditure,” or “disbursement for an electioneering communication” in connection with any federal, state or local election in the United States. 11 CFR 110.20. A knowing and willful violation of the foreign national ban is punishable by a civil penalty not exceeding the greater of $10,000 or 200 percent of any contribution or expenditure involved in the violation. It is also punishable criminally by up to five years’ imprisonment. 2 U.S.C. §§437g(a)(5) and (d).
The Plaintiffs claim that the foreign national ban violates the First Amendment and that since the Plaintiffs lawfully reside and work in the United States, they are fully protected by the First Amendment. Plaintiffs also claim that the forms of expression that are criminalized by the foreign national prohibition are core political speech entitled to the strongest protection under the First Amendment.
The Plaintiffs request that the court declare 2 U.S.C. §441e and 11 CFR 110.20 unconstitutional as applied to foreign nationals who lawfully live and work in the United States, enjoin the FEC from enforcing those provisions against the Plaintiffs or other similarly situated foreign nationals, grant costs and attorneys’ fees and award any other relief that the court deems just and proper.
The court granted the FEC’s Motion to Dismiss and denied the plaintiffs’ Motion for Summary Judgment. In its Memorandum Opinion, the court cited a long history of Supreme Court case law holding that foreign citizens may be excluded from certain activities that are an integral part of democratic self-government in the United States. The opinion listed several examples of activities that foreign citizens may be barred from: voting, serving as jurors, working as police or probation officers and teaching at public schools. See, e.g., Cabell v. Chavez-Salido, 454 U.S. 432 (1982); Ambach v. Norwick, 441 U.S. 68 (1979); Foley v. Connelie, 435 U.S. 291 (1978). “Under those precedents, the federal ban at issue here readily passes constitutional muster,” the court stated.
The court said these cases provide a straightforward precedent: “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.” For purposes of First Amendment analysis, the court stated the United States has a compelling interest in limiting the participation of foreign citizens in such activities, and “thereby preventing foreign influence over the U.S. political process.” The court found that political contributions and expenditures are a vital aspect of the process of American democratic self-government. The court said the ban on foreign election spending was also in line with the 2010 Supreme Court decision in Citizens United v. FEC, 130 S. Ct. 876 (2010).