FEC Record: Litigation

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Bluman v. FEC

On August 8, 2011, the U.S. District Court for the District of Columbia dismissed a 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.

Background
The Plaintiffs, Benjamin Bluman and Asenath Steiman, both foreign nationals who lawfully live and work in the United States, filed suit against the FEC on October 19, 2010. The suit challenged the constitutionality of 2 U.S.C §441e and its implementing regulations at 11 CFR 110.20, which prohibit contributions, expenditures, and other election-related spending by foreign nationals.

Federal law and Commission regulations bar foreign nationals who have not received permanent resident status in the United States 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.” Such persons are also prohibited from making “a contribution or donation to a committee of a political party,” and from making a disbursement for independent expenditures or electioneering communications. 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 claimed that the foreign national ban violates the First Amendment as applied to foreign nationals, such as the Plaintiffs, who lawfully reside and work in the United States.

Court Decision
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).

U.S. District Court for the District of Columbia: 1:10-cv-01766-RMU.

(Posted 8/26/11; By: Isaac J. Baker)

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The FEC Record is produced by the Information Division, Office of Communications. Toll free 800-424-9530; Local 202-694-1100; E-mail info@fec.gov. Greg Scott, Director; Amy Kort, Asst. Director; Dorothy Yeager, Editor