Readers of Make No Law may recall the case of Bluman v. FEC, a challenge to the federal law that prohibits noncitizens, even those who lawfully reside in the United States, from spending any money to influence state or federal elections. In January the U.S. Supreme Court summarily affirmed a lower-court ruling upholding the law.
The Institute for Justice had filed a brief urging the U.S. Supreme Court to review the case and to strike down the law as it applied to aliens lawfully living in the United States. Our reasons for filing the brief were twofold. First, we believe that the First Amendment protects a preexisting natural right to engage in peaceful political speech and association—a right on which citizens and permanent residents hold no monopoly. Second, we knew that a victory for the government would be used in future cases to justify restrictions on U.S. citizens and, ultimately, to undermine the Supreme Court’s landmark ruling in Citizens United.
Less than two months after the Supreme Court’s summary affirmance in Bluman, that is precisely what we have seen. First came the Montana Supreme Court’s defiant ruling in Western Tradition Partnership, Inc. v. Attorney General, which cited Bluman to argue that the Citizens United decision was a narrow, fact-bound ruling, rather than the broad repudiation of government censorship that it obviously was. And now we have this argument from the Federal Election Commission in Wagner v. FEC, a challenge to a federal ban on political contributions and expenditures by federal contractors:
Contrary to the plaintiffs’ suggestion that only concerns about corruption or its appearance can justify FECA restrictions . . . protecting the integrity of the federal government from improper outside influence has been deemed an adequate basis, by itself, to justify a complete ban on contributions by certain individuals. See Bluman v. FEC, 800 F. Supp. 2d 281, 292 (D.D.C. 2011) (upholding ban on foreign national contributions in 2 U.S.C. § 441e), aff’d, 132 S. Ct. 1087 (2012).
That the FEC would latch onto Bluman as a justification for censoring speech by U.S. citizens is not surprising— Bluman is one of the FEC’s few recent victories and, as the Supreme Court noted in Citizens United, the FEC’s “business is to censor.” And it still remains to be seen what will happen on the merits in both the Wagner case and Western Tradition Partnership (many are predicting that the Supreme Court will summarily overrule the Montana court’s ruling). But these cases demonstrate that whenever we make exceptions to the principles of free political speech and association that are enshrined in the First Amendment, proponents of speech restrictions will invariably try to expand those exceptions. That’s why IJ got involved in Bluman v. FEC and why we will continue to vigorously defend the Citizens United ruling going forward.