By David Fine
Earlier this year, the United States Supreme Court upheld a federal law that bans foreign nationals from spending to influence U.S. elections. See Bluman v. Federal Election Commission. The Court upheld the decision of a three-judge panel without comment. Congress had strengthened the law in question in 2002 in response to contributions by foreign nationals to political parties.
The rationale of the Court’s decision in Citizens United v. Federal Election Commission, that corporations have a First Amendment right to spend money on political speech would seem to extend to such spending by foreign nationals. Indeed, commentators saw the Bluman case as an attempt to find another source of campaign money. Noted election law expert, Richard L. Hasen, in a piece in the New York Times, stated that the success of the lawsuit “would lead to the courts’ allowing foreign corporations and even potentially foreign governments – not to mention wealthy foreign individuals not living legally in the U.S. – to spend money to influence U.S. elections.” While the decision permits the outcome for now, the Court avoided explaining why the rationale of Citizens United would not allow contributions by foreign nationals via the summary affirmance of the lower court opinion.
Even thought this case didn’t involve corporate speech, it is an example of the types of issues that courts will be wrestling with as they determine the reach of Citizens United, including the extent to which corporations will be able to participate in the election process.