Lawyers for a Sidley Austin associate and a doctor today urged a three-judge panel in Washington to find unconstitutional the inability of foreign nationals who live and work in the United States from making monetary contributions to political candidates.
The associate, Benjamin Bluman, and the doctor, Asenath Steiman, sued the Federal Elections Commission in October in Washington federal district court, saying the restrictions imposed on them violate First Amendment speech rights.
Bluman, who practices in Sidley’s mergers and acquisition group in Manhattan, is a native of Canada. Bluman said in the suit he wants to contribute money to Diane Savino, a Democratic state senator in New York who is a proponent of same-sex marriage. Bluman also intends to print and distribute flyers to support President Barack Obama’s re-election campaign.
Arguing for the plaintiffs today in front of a three-judge panel, Jones Day associate Warren Postman called the FEC position “extreme” and said Bluman and Steiman should not be excluded from the political speech as lawful, if not permanent, residents of the United States.
“If there is a concern about speech, the solution is more speech,” Postman told U.S. District Judges Ricardo Urbina and Rosemary Collyer, who heard the case with Judge Brett Kavanaugh of the U.S. Court of Appeals for the D.C. Circuit. The panel heard argument for more than an hour in the ceremonial courtroom of the federal district courthouse in downtown Washington.
Collyer said she was troubled by what she described as Postman’s “black and white” view of the First Amendment. Collyer said the First Amendment is not “all or nothing.”
The judge noted the plaintiffs are permitted to advocate orally for the candidate and the cause of their choice. Bluman and Steiman, Collyer said, can volunteer in a campaign headquarters and speak on public radio for or against a candidate. “They can’t contribute money,” she said. “But they can contribute in other ways.”
Collyer asked Postman, “Why should the First Amendment think it’s critical to hear from the dollars of your clients? You want them to do whatever a voter or permanent resident can do.” The judges questioned whether the First Amendment “goes that far.”
Postman said political speech through campaign contributions is no less protected than speech on a soapbox. He urged the panel to allow lawful residents of the United States to “participate in the marketplace of ideas.”
Kavanaugh questioned whether Postman’s argument would open the door for foreign corporations, with a significant presence in the United States, to contribute campaign funds to candidates.
In the abstract, Postman responded, domestic corporations would be able to spend on candidates. But he said judges would have to devise a line to determine whether a foreign company with an operation in the United States is a domestic outfit or whether the company remains foreign.
FEC lawyer Adav Noti told the panel judges that Congress has the authority to distinguish between citizens and aliens. Congress, Noti said, did not lose its right to define “political community” by allowing certain non-residents—such as Bluman and Steiman—to live and work lawfully in the United States.