[EL] Breaking News: Summary Affirmance in Bluman v. FEC
JBoppjr at aol.com
JBoppjr at aol.com
Mon Jan 9 08:46:38 PST 2012
I understand that this is a fine legal distinction but, as lawyers, we are
trained to make fine distinctions. But even though it is a fine
distinction, it is a very important analytical point that you seem to disagree with
me on.
First, I do agree with you that "Perhaps we can both agree on this
statement: when it comes to the First Amendment, sometimes the identity of the
speaker does matter." But it does in a way much different than you assert
in your writings about this. The First Amendment does apply to all
speakers, so a ban on foreign contributors is a severe burden on First Amendment
rights. This is what the Court was saying when it said that the First
Amendment applies regardless of the speaker.
But the next step in the analysis is: is there a compelling
governmental interest which justifies this severe burden on First Amendment rights?
As I have said, it is perfectly consistent to reject the Austin distortion
ruling that justified bans on corporate and labor union speech, but say
that foreign governments, foreign terrorist organist ions and armies, etc. are
different than you everyday American corporation such that the foreign
interests can be ban. So your claim of a "doctrinal incoherence" is, in my
view: "incoherent." You have set up a straw man and have been having fun
knocking it down.
And finally, I can assure you that, if I were to agree with you on a
point, as I have on occasion, I would be happy to acknowledge it. Jim
In a message dated 1/9/2012 11:02:40 A.M. Eastern Standard Time,
rhasen at law.uci.edu writes:
Jim,
We've been down this road before. If we engaged in a long enough
discussion, I would say that you would end up having to concede (though you never
would) that your concern about these groups affecting U.S. elections comes
down to an argument about corruption, appearance of corruption, or
distortion/equality. Each of these arguments were rejected by SCOTUS in the
corporate context in CU.
Perhaps we can both agree on this statement: when it comes to the First
Amendment, sometimes the identity of the speaker does matter.
Rick
On 1/9/2012 7:56 AM, _JBoppjr at aol.com_ (mailto:JBoppjr at aol.com) wrote:
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_ (mailto: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) |
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--
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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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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