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Is new Supreme Court ruling a retreat from Citizens United?

The Supreme Court upheld Monday a long-established provision of campaign finance law that seeks to prevent foreign interests from influencing domestic politics.

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A three-judge panel in Washington dismissed the case, ruling that a “fairly clear line” has been established that the government can exclude foreign citizens from participating in activities that are intimately related to the process of democratic self-government.

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The court upheld both a contribution ban and an expenditure ban, saying it was a justifiable way for Congress to seek to limit foreign influence in US elections.

The case sought to explore an inconsistency in the application of constitutional rights to those present in the US.

Many rights guaranteed in the Constitution apply equally to all citizens and foreigners present in the US, such as the protections of the criminal justice system. There is a right to public education and welfare, as well as the ability to work. But the right to participate in self-government is reserved to citizens.

Noncitizens may not vote, serve as jurors, work as police officers, as public school teachers, or hold certain public offices.

“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 school teacher. Thus, our conclusion here follows almost a fortiori from those cases,” the three-judge panel of US District Court for the District of Columbia said in its decision.

“Temporary resident foreign citizens by definition have primary loyalty to other national political communities, many of which have interests that compete with those of the United States,” the three-judge panel said.

Lawyers for Bluman and Steiman had argued that the government can bar foreign citizens abroad from making contributions, but it can’t impose that restriction when they are present within the US.

Lawful residents of the US are entitled to the full protections of the First Amendment, wrote Washington lawyer Michael Carvin in his brief to the court.

“The decision below is not simply wrong; it is dangerous,” Mr. Carvin said. “In upholding [the campaign finance restrictions], the court drafted a road-map for every legislature that wants to take another crack at criminalizing political spending,” he said.

“The unavoidable import of the decision is that all resident aliens – including the 12 million permanent residents now living in the U.S. – could be banned from calling members of Congress or attending a political rally,” Carvin said.

He said lawmakers and members of the public will watch the case closely to see if the Supreme Court “meant what it said in Citizens United,” or intends to retreat from free speech principles affirmed in that decision.

Solicitor General Donald Verrilli countered in his brief that Congress is well justified in seeking to limit foreign influence in American elections.

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