A three-judge panel this afternoon in Washington upheld the constitutionality of the ban against foreign citizens donating money to candidates in state and federal elections.
The plaintiffs, including Benjamin Bluman, a Sidley Austin associate in New York, sued the Federal Election Commission last year in U.S. District Court for the District of Columbia, arguing the ban violates the First Amendment.
U.S. District Judges Rosemary Collyer and Ricardo Urbina, sitting with Judge Brett Kavanaugh of the U.S. Court of Appeals for the D.C. Circuit, said today the U.S. Supreme Court has long held the government may prohibit foreign citizens from “activities that are part of democratic self-government in the United States.”
Kavanaugh, writing for the three-judge court, said the Supreme Court has allowed the government to ban aliens from teaching at public schools, voting, serving as jurors and working as police or probation officers.
“Under those precedents, the federal ban at issue here readily passes constitutional muster,” Kavanaugh said in the decision.
The court, which heard argument in May, called it a “straightforward principle” that foreign citizens do not have a constitutional right to participate in democratic self-government.
“In our view, spending money to influence voters and finance campaigns is at least as (and probably far more) closely related to democratic self-government than serving as a probation officer or public schoolteacher,” the court said.
Bluman’s work visa, the court said, allows him to stay in the country until November 2012. Bluman, the court said, plans to apply for a second three-year term. Bluman wants to donate to candidates, including President Barack Obama.
The co-plaintiff, Asenath Steiman, is a dual citizen of Israel and Canada. Steiman, a medical resident in New York City, wants to contribute to Sen. Tom Coburn (R-Oklahoma) and the yet-to-be-determined Republican nominee for president.
Jones Day associate Warren Postman, who argued for Steiman and Bluman, said the plaintiffs are reviewing the court opinion and planning to appeal.
Kavanaugh noted four U.S. Supreme Court justices found it, in his words, "beyond rationale debate," in Citizens United v. FEC, that the government may ban foreign contributions and expenditure. In Citizens United, the high court divided 5-4 in overturning the ban on corporate spending on elections.