[EL] Breaking News: Summary Affirmance in Bluman v. FEC
JBoppjr at aol.com
JBoppjr at aol.com
Mon Jan 9 07:56:10 PST 2012
So President Obama was wrong all along. I am sure he will appologize for
his mistake.
And there is no "doctrinal incoherence," it is perfectly consistent for the
Supreme Court to hold that there is no compelling interest in prohibiting
corporate and labor union speech but that there is a compelling interest in
prohibiting foreign interests from contributing to candidates in U.S.
elections. I for one agree that the Red Chinese Army, the Iranian government
and Hamas can be prohibited from contributing. Jim
In a message dated 1/9/2012 10:40:10 A.M. Eastern Standard Time,
rhasen at law.uci.edu writes:
_Breaking News: Supreme Court Affirms that First Amendment Not Violated by
Barring Foreign Individuals from Spending Money (or Contributing) in U.S.
Elections_ (http://electionlawblog.org/?p=27557)
Posted on _January 9, 2012 7:38 am_ (http://electionlawblog.org/?p=27557)
by _Rick Hasen_ (http://electionlawblog.org/?author=3)
As I had _hoped_
(http://www.tnr.com/article/politics/98162/citizens-united-foreign-money) _and_
(http://www.nytimes.com/roomfordebate/2012/01/05/should-foreign-money-be-allowed-to-finance-us-elections/bluman-v-fec-is-a-trojan
-horse) _ expected_ (http://electionlawblog.org/?p=27513) , the Supreme
Court issued a summary affirmance this morning in the _Bluman v. FEC _
(http://www.scotusblog.com/case-files/cases/bluman-v-federal-election-commission/)
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_
(http://www.slate.com/articles/news_and_politics/jurisprudence/2011/12/the_obama_administration_s_risky_voter_id_move_threatens_the_
voting_rights_act.html) , this came to the Court on an unusual procedure:
an appeal from a three-judge court. A summary affirmance of an appeal
(unlike a simple denial of a writ of certiorari) does have precedential value.
In other words, by today’s order, the Supreme Court agreed that the lower
court got it right (even if it might not necessarily agree on the precise
reasoning in the case).
Is this ruling consistent with Citizens United v. FEC, the case holding
that corporations may not be barred from independently spending money in U.S.
elections? In Citizens United, the Supreme Court expressly reserved the
question whether the foreigner spending ban violated the First Amendment. I
_have argued_ (http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1620576)
, however, that the logic of Citizens United should have led the Court to
strike down the foreign spending ban too. But I also predicted that the
Court would not do so:
Despite the apparent application of Citizens United’s reasoning to the
question of foreign spending limits, I have little doubt that the Court would
uphold such limitations even though the foreign spending limit is more
severe than the corporate limitation. It is an actual ban, as there is no PAC
alternative for foreigners. As I explain in Part III, at least some of the
Justices appear to care about public opinion, and the public outcry over
Citizens United could well pale compared to a Court decision allowing
unlimitedforeign funds in our elections.206 Indeed, it was probably to forestall
such an attack after Citizens United itself that the majority added those
three sentences keeping the issue open.
So how could the Court sustain a law imposing foreign spending limits
without overturning Citizens United?207 The short answer is through doctrinal
incoherence. For example, the Court could state that the threat from foreign
spending influencing U.S. elections is one different in kind than that
posed by domestic corporate spending, and that when it comes to protecting the
country from foreign influence, the First Amendment must give way. Or the
Court could state that barring foreign influence is supported by the same
interest “in allowing governmental entities to perform their functions”
that justifies limitations on some political activities of government
employees under the Hatch Act,210 an interest the Court reaffirmed in Citizens
United. As the last Section showed, neither of these arguments would be
convincing under a literal application of the principles of Citizens United,
because the arguments are premised on corruption, appearance of corruption, or
distortion. Most likely, a majority that would make an argument favoring
foreign spending limits would simply ignore the inconsistent parts of
Citizens United and move on. In short, there is no reason we should expect a
consistent application of Citizens United in the context of foreign election
spending.
Thanks to the summary affirmance, the Court majority does not have to
explain its doctrinal incoherence.
(http://www.addtoany.com/share_save#url=http://electionlawblog.org/?p=27557&title=Breaking%20News:%20Supreme%20Court%20Affirms%20that%20First%20Amendme
nt%20Not%20Violated%20by%20Barring%20Foreign%20Individuals%20from%20Spending
%20Money%20(or%20Contributing)%20in%20U.S.%20Elections&description=)
Posted in _campaign finance_ (http://electionlawblog.org/?cat=10) |
Comments Off
--
Rick Hasen
Chancellor's Professor of Law and Political Science
UC Irvine School of Law
401 E. Peltason Dr., Suite 1000
Irvine, CA 92697-8000
949.824.3072 - office
949.824.0495 - fax
_rhasen at law.uci.edu_ (mailto:rhasen at law.uci.edu)
_http://law.uci.edu/faculty/page1_r_hasen.html_
(http://law.uci.edu/faculty/page1_r_hasen.html)
_http://electionlawblog.org_ (http://electionlawblog.org/)
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