[EL] Breaking News: Summary Affirmance in Bluman v. FEC

[Steve Gold]

I thought in the context of political speech, the identity of the speaker
does not matter because of the electorate's right to hear what speakers
have to say about the candidates.  This was the reasoning behind rejecting
the argument that corporations should not be able to speak since they do
not vote.  And since independent speech has no potential to corrupt -- as
the Court tells us in Citizens United -- the government may not restrict it.

I haven't yet heard anyone making the case that independent speech by a
foreign national has the potential to somehow injure our ability to engage
in self-governance.  Handing out leaflets is an entirely different activity
from serving as a probation officer or sitting on a jury.  No one has a
First Amendment right to perform either of those functions, and leaflets
don't elect anybody.  Why should the electorate be deprived of hearing the
speech of Ben Bluman any more so than that of the largest "domestic"
corporations (whose allegiance is at least unclear)?

--
Steven Gold
General Counsel
ActBlue
steve at actblue.com
617.517.7636
www.actblue.com


On Mon, Jan 9, 2012 at 1:39 PM, Smith, Brad <BSmith at law.capital.edu> wrote:

> I largely agree with Dan. I posted some thoughts here for those who are
> interested.
> http://www.campaignfreedom.org/blog/detail/blumen-v-fec-and-the-infield-fly-rule
>
>
> Bradley A. Smith
> Josiah H. Blackmore II/Shirley M. Nault
>  Designated Professor of Law
> Capital University Law School
> 303 East Broad Street
> Columbus, OH 43215
> (614) 236-6317
> bsmith at law.capital.edu
> http://www.law.capital.edu/faculty/bios/bsmith.asp
>
>
> -----Original Message-----
> From: law-election-bounces at department-lists.uci.edu [mailto:
> law-election-bounces at department-lists.uci.edu] On Behalf Of Lowenstein,
> Daniel
> Sent: Monday, January 09, 2012 12:21 PM
> To: JBoppjr at aol.com; rhasen at law.uci.edu
> Cc: law-election at uci.edu
> Subject: Re: [EL] Breaking News: Summary Affirmance in Bluman v. FEC
>
>      My view on this differs from Rick's because of my belief in a
> jurisprudence that draws more on factual similarities and dissimilarities
> than on abstract propositions.  (See my article on the commercial speech
> doctrine, 56 U. Cincinnati LR 1205 (1988)).  The question of whether
> foreigners can contribute or spend in American elections seems to me quite
> different from whether domestic corporations can do so, so I am skeptical
> of taking abstract propositions from the Citizens United opinion and
> applying them in deductive manner to a quite different question.  To put it
> another way, I believe the function of the courts is to decide cases, not
> to legislate elaborate doctrinal webs of rules, and that stare decisis
> should be understood accordingly.  Jim reaches a similar view by doctrinal
> means by emphasizing the compelling state interest issue and pointing out
> that they need not be resolved identically in the two cases.
>
>        Part of the fact-oriented approach, especially in constitutional
> law, should be history.  There is strong historical support for banning
> contributions by foreigners.  Also by corporations.  That cuts in favor of
> upholding both kinds of regulations.  But in the case of corporations, the
> core ban historically has been understood to apply centrally to
> contributions more than expenditures.  Of course, the distinction between
> contributions and expenditures was not very salient before Buckley v. Valeo.
>
>        To the extent that Rick argues strenuously that the Court's
> position is incoherent in these cases, it is also relevant that Austin,
> which CU overruled, was the clearest instance of inconsistency (or
> incoherence) in the constitutional law of campaign finance, as it plainly
> conflicted with the logic of Citizens Against Rent Control v. Berkeley.  In
> the words of the title of an article I wrote, Austin more than any other
> campaign finance case, made the mosic patternless.  CU, whatever its other
> pros and cons, restored coherence to a far greater degree, in my judgment,
> than whatever incoherence is caused by CU in conjunction with Bluman.
>
>        Because my approach calls for judgment in each case, it does not
> dictate results.  Personally, I am quite satisfied that Bluman is correct
> and I am also quite satisfied that NRWC, which upheld the constitutionality
> of a ban on contributions by corporations, was correct, despite the view of
> many at the time that it was incoherent in conjunction with Bellotti.  CU
> seems to me a very close call.
>
>        Finally, I see no need for the testiness between Rick and Jim.
>  Each is defending a perfectly respectable jurisprudential position and
> doing so capably.
>
>             Best,
>
>             Daniel H. Lowenstein
>             Director, Center for the Liberal Arts and Free Institutions
> (CLAFI)
>             UCLA Law School
>             405 Hilgard
>             Los Angeles, California 90095-1476
>             310-825-5148
>
>
> ________________________________
> From: law-election-bounces at department-lists.uci.edu [
> law-election-bounces at department-lists.uci.edu] On Behalf Of
> JBoppjr at aol.com [JBoppjr at aol.com]
> Sent: Monday, January 09, 2012 8:46 AM
> To: rhasen at law.uci.edu
> Cc: law-election at uci.edu
> Subject: Re: [EL] Breaking News: Summary Affirmance in Bluman v. FEC
>
>    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%3A%2F%2Felectionlawblog.org%2F%3Fp%3D27557&title=Breaking%20News%3A%20Supreme%20Court%20Affirms%20that%20First%20Amendment%20Not%20Violated%20by%20Barring%20Foreign%20Individuals%20from%20Spending%20Money%20%28or%20Contributing%29%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>
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> 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>
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