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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“The long and well documented history of attempts by foreign nationals to exert financial influence over American elections amply demonstrates that direct electoral spending is well within the range of alien activity that Congress has a compelling interest in preventing,” Mr. Verrilli wrote.Skip to next paragraph
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“The First Amendment does not require Congress to make an all-or-nothing choice between excluding an alien from the United States and allowing him to participate in the fundamental operations of democratic self-government,” he said.
“From the Nazi propaganda of the 1930s to the direct campaign contributions of the Watergate era to the soft-money donations of the 1990s, foreign interests have consistently demonstrated their desire and willingness to spend money to sway American elections and governmental decisions,” Mr. Verrilli wrote.
The solicitor general added: “Foreign financing has come not only directly from overseas, but also routed through foreign nationals in the United States.”
In his dissent to the Citizens United decision, then-Justice John Paul Stevens said the government has the authority to block foreign nationals from making expenditures and contributions in US elections. His dissent was joined by three other justices – Ruth Bader Ginsburg, Stephen Breyer, and Sonia Sotomayor.
The five majority justices in the Citizens United decision did not address the issue. Thus it was unclear – until Monday – what a majority of Supreme Court justices thought about the foreign resident ban.
Carvin had argued that the right to speak about elections is different than participating in those elections.
But the three-judge panel said that spending is participation. “When an expressive act is directly targeted at influencing the outcome of an election, it is both speech and participation in democratic self-government,” the court ruled. “Spending money to contribute to a candidate or party or to expressly advocate for or against the election of a political candidate is participating in the process of democratic self government,” the judges said.
“Notably, [the campaign finance law] as we interpret it, does not restrain foreign nationals from speaking out about issues or spending money to advocate their views about issues,” the court said. “It restrains them only from a certain form of expressive activity closely tied to the voting process – providing money for a candidate or political party or spending money in order to expressly advocate for or against the election of a candidate.”
The court added: “A statute that excludes foreign nationals from political spending is therefore tailored to achieve that compelling interest.”