UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

____________________________________ 

 ) 

BENJAMIN BLUMAN, et al., ) 

 ) 

 Plaintiffs, ) Civ. No. 10-1766 (RMU/Three-Judge Court) 

 ) 

 v. ) 

 ) OPPOSITION AND REPLY 

FEDERAL ELECTION COMMISSION, ) 

) 

 Defendant. ) 

____________________________________) 

FEDERAL ELECTION COMMISSION’S OPPOSITION TO PLAINTIFFS’ MOTION 

FOR SUMMARY JUDGMENT AND REPLY IN SUPPORT OF THE COMMISSION’S 

MOTION TO DISMISS 

Phillip Christopher Hughey 

Acting General Counsel 

chughey@fec.gov 

 

David Kolker (D.C. Bar No. 394558) 

Associate General Counsel 

dkolker@fec.gov 

 

Kevin Deeley 

Assistant General Counsel 

kdeeley@fec.gov 

Steve N. Hajjar 

Adav Noti (D.C. Bar No. 490714) 

 Attorneys 

 shajjar@fec.gov 

 anoti@fec.gov 

FEDERAL ELECTION COMMISSION 

999 E Street NW 

 Washington, DC 20463 

March 1, 2011 (202) 694-1650 

Case 1:10-cv-01766-RMU -BMK -RMC Document 30 Filed 03/01/11 Page 1 of 56
TABLE OF CONTENTS 

I. THE CONSTITUTION GRANTS THE FEDERAL GOVERNMENT 

AUTHORITY TO EXCLUDE ALIENS FROM PARTICIPATING IN THE 

PROCESS OF SELF-GOVERNMENT ........................................................................2 

II. CONGRESS HAD A WELL-FOUNDED BASIS FOR ACTING TO PROTECT 

AMERICAN ELECTIONS FROM ALL FINANCIAL INFLUENCE BY 

FOREIGN NATIONALS ..............................................................................................5 

III. COURTS HAVE REPEATEDLY UPHELD RATIONAL EXCLUSIONS OF 

ALIENS FROM PARTICIPATING IN DEMOCRATIC PROCESSES ......................8 

A. Aliens Are Excluded from the Self-Government of the People .......................8 

B. The Federal Power to Exclude Aliens from Self-Governance Extends 

 to Restrictions that Involve First Amendment Activity ..................................10 

C. Courts Use Rational Basis Review for Alienage Classifications that 

 Involve Sovereign Functions of Government .................................................16 

D. Plaintiffs’ Ties to the United States Are Temporary and in Some Instances 

 Shorter than the Terms of Offices They Seek to Influence .............................18 

E. Section 441e Is Content Neutral and Viewpoint Neutral .................................20 

IV. EVEN IF REGULATION OF ALIEN CONTRIBUTIONS WERE SUBJECT TO 

THE SAME SCRUTINY AS REGULATION OF CITIZEN CONTRIBUTIONS, 

THE APPROPRIATE STANDARD WOULD BE INTERMEDIATE 

SCRUTINY ..............................................................................................................22 

V. SECTION 441e IS CONSTITUTIONAL UNDER ANY LEVEL OF SCRUTINY ..24 

A. Section 441e Furthers the Important and Compelling Governmental 

Interest of Protecting American Democracy from Foreign Influence .............24 

B. Section 441e Is Closely Drawn and Narrowly Tailored Not to Apply to 

Aliens Who Have Permanent Ties to the United States, and Not to Apply 

to Issue Speech .................................................................................................33 

C. Plaintiffs’ Remaining Arguments Mischaracterize the Government 

Interests and Statute at Issue ............................................................................40 

1. The Rights to Vote and to Engage in Political Spending Are Not 

Coextensive, but Each Is a Form of Political Participation that the 

Government May Reserve for Citizens................................................40 

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2. Section 441e Is an Influence-Prevention Statute, Not a SpeechEqualization Statute .............................................................................42 

VI. CONCLUSION ............................................................................................................44

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TABLE OF AUTHORITIES 

Cases Page 

Adarand Constructors, Inc. v. Pena, 515 U.S. 200 (1995) ......................................................22 

Ambach v. Norwick, 441 U.S. 68 (1979) .......................................... 9, 11-12, 17, 37-38, 41, 44 

Am.-Arab Anti-Discrimination Comm. v. Reno, 70 F.3d 1045 (9th Cir. 1995), 

vacated 525 U.S. 471, 492 (1999) .....................................................................................15 

Austin v. Mich. Chamber of Commerce, 494 U.S. 652 (1990) ................................................43 

Blount v. SEC, 61 F.3d 938 (D.C. Cir. 1995) ....................................................................25, 36 

Brandenburg v. Ohio, 395 U.S. 444 (1969) .............................................................................22 

Bridges v. Wixon, 326 U.S. 135 (1945) ............................................................................. 14-15 

Brunnenkant v. Laird, 360 F. Supp. 1330 (D.D.C. 1973) ........................................................16 

Buckley v. Valeo, 424 U.S. 1 (1976) ...................................................... 8, 22, 24, 38-39, 41, 44 

Burson v. Freeman, 504 U.S. 191 (1992) ................................................................................38 

Cabell v. Chavez-Salido, 454 U.S. 432 (1982) ........................................ 4, 9, 10, 13, 16-17, 20 

Citizens Against Rent Control v. Berkeley, 454 U.S. 290 (1981) ............................................38 

Citizens United v. FEC, 130 S. Ct. 876 (2010) ...................................................... 14, 31, 42-44 

Colo. Republican Fed. Campaign Comm. v. FEC, 518 U.S. 604 (1996) ..................................7 

Comm’r v. Wodehouse, 337 U.S. 369 (1949) ..........................................................................32 

Communist Party of Indiana v. Whitcomb, 414 U.S. 441 (1974) ............................................22 

Demore v. Kim, 538 U.S. 510 (2003) ......................................................................................34 

FCC v. League of Women Voters of Cal., 468 U.S. 364 (1984) ..............................................12

FEC v. Beaumont, 539 U.S. 146 (2003) ...................................................................... 23, 25-26

Fla. Bar v. Went For It, Inc., 515 U.S. 618 (1995) ..................................................................25 

Foley v. Connelie, 435 U.S. 291 (1978) ................................................... 8-9, 17-18, 20, 41, 44

Fong Yue Ting v. United States, 149 U.S. 698 (1893) .............................................................15 

iii 

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Hampton v. Mow Sun Wong, 426 U.S. 88 (1976) ................................................................5, 10 

Harisiades v. Shaughnessy, 342 U.S. 580 (1952) .......................................................... 5, 14-15 

Hill v. Colorado, 530 U.S. 703 (2000) ..............................................................................21, 39 

Holder v. Humanitarian Law Project, 130 S. Ct. 2705 (2010) ............................. 21, 24-25, 39 

INS v. Chadha, 462 U.S. 919 (1983) .........................................................................................4

Johnson v. Eisentrager, 339 U.S. 763 (1950) ..........................................................................13 

Kleindienst v. Mandel, 408 U.S. 753 (1972)..............................................................................3 

Kwong Hai Chew v. Colding, 344 U.S. 590 (1953) .................................................................15 

Mathews v. Diaz, 426 U.S. 67 (1976) .................................................................................... 3-5 

McConnell v FEC, 540 U.S. 93 (2003) ................................................... 8, 23, 25, 31-32, 36-38 

Meese v. Keene 481 U.S. 465 (1987) .......................................................................................39 

Moving Phones P’ship v. FCC, 998 F.2d 1051 (D.C. Cir. 1993) ................................ 11-13, 17

Nat’l Ass’n of Mfrs. v. Taylor, 582 F.3d 1 (D.C. Cir. 2009) ....................................................25 

Nixon v. Shrink Mo. Gov’t PAC, 528 U.S. 377 (2000) ..................................................8, 22, 25 

Nyquist v. Mauclet, 432 U.S. 1 (1977) .....................................................................................10 

Plyler v. Doe, 457 U.S. 202 (1982) ............................................................................................2 

Rafeedie v. INS, 795 F. Supp. 13 (D.D.C. 1992) .....................................................................16 

Randall v Sorrell, 548 U.S. 230 (2006) ................................................................................. 7-8

Rosenberger v. Rector & Visitors of the Univ. of Va., 515 U.S. 819 (1995) ...........................21 

Ruggiero v. FCC, 317 F.3d 239 (D.C. Cir. 2003) ..............................................................21, 36 

Scales v. United States, 367 U.S. 203 (1961) ............................................................................3 

Schneider v. Kissinger, 412 F.3d 190 (D.C. Cir. 2005) ......................................................... 2-3

Sugarman v. Dougall, 413 U.S. 634 (1973) ................................................9, 13, 17, 19, 41, 44 

Toll v. Moreno, 458 U.S. 1 (1982) .......................................................................................2, 10 

Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622 (1994) ............................................................33 

iv 

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United States v. Curtiss-Wright Export Corp., 299 U.S. 304 (1936) ........................................3 

United States v. Verdugo-Urquidez, 494 U.S. 259 (1990) .................................................10, 29 

Ward v. Rock Against Racism, 491 U.S. 781 (1989) ...............................................................20 

Wong Wing v. United States, 163 U.S. 228 (1896) ..................................................................15 

Statutes and Regulations

2 U.S.C. § 431(8) .....................................................................................................................31 

2 U.S.C. § 431(17) ...................................................................................................................24 

2 U.S.C. § 441a(a)(1) ...............................................................................................................24 

2 U.S.C. § 441b ........................................................................................................................14 

2 U.S.C. § 441e ................................................................................................................ passim 

2 U.S.C. § 441f .................................................................................................................. 27-28 

8 U.S.C. § 1101(a)(15)(A)-(V) ................................................................................................34 

8 U.S.C. § 1101(a)(15)(J) ........................................................................................................35 

8 U.S.C. § 1101(a)(20) .............................................................................................................34 

8 U.S.C. § 1101(a)(22)(B) .......................................................................................................33 

8 U.S.C. § 1101(a)(29) .............................................................................................................33 

8 U.S.C. § 1408(1) ...................................................................................................................33 

8 U.S.C. § 1611(a) ...................................................................................................................35 

10 U.S.C. § 504(b) ...................................................................................................................35 

26 U.S.C. § 871(a)(1)(A) .........................................................................................................32 

26 U.S.C. § 872(a) ...................................................................................................................32 

Bipartisan Campaign Reform Act of 2002 (“BCRA”), Pub. L. No. 107-155, 116 Stat. 81 ....23 

 BCRA § 303, 116 Stat. 96 .................................................................................................27 

 BCRA § 317, 116 Stat. 109 ...............................................................................................34 

8 C.F.R. § 214.1(a)(3)(ii) .........................................................................................................35 

v 

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11 C.F.R. § 100.94 ...................................................................................................................37 

11 C.F.R. § 100.155 .................................................................................................................37 

Constitutional and Congressional Authorities

120 Cong. Rec. 8782-83 (Mar. 28, 1974) ............................................................................7, 34 

148 Cong. Rec. H355 (Feb. 13, 2002) .......................................................................................6 

148 Cong. Rec. H448-52 (Feb. 13, 2002) .......................................................................... 34-35 

S. Rep. No. 105-167 (1998) ...................................................................................................5, 7 

U.S. Const. art. I, § 8, cl. 3 .........................................................................................................2 

U.S. Const. art. I, § 8, cl. 4 .........................................................................................................2 

U.S. Const. art. VI, cl. 2 ...........................................................................................................39 

Other Authorities

Americans Against Food Taxes, “Give Me a Break,” available at

http://www.nofoodtaxes.com/ads/ ....................................................................................37 

Club for Growth, Frequently Asked Questions, 

http://www.clubforgrowth.org/aboutus/?subsec=0&id=17#M10 ......................................24 

FEC Advisory Op. 1994-28, http://saos.nictusa.com/aodocs/1994-28.pdf .............................34 

FEC Advisory Op. 2003-12, http://saos.nictusa.com/aodocs/2003-12.pdf .............................38 

FEC Advisory Op. 2005-10, http://saos.nictusa.com/aodocs/2005-10.pdf .............................38 

Evan Hill, Libyans in US Allege Coercion, Al Jazeera English (Feb. 17, 2011), 

http://english.aljazeera.net/news/africa/2011/02/2011217184949502493.html .......... 27-28 

Internal Revenue Serv., Alien Liability for Social Security and Medicare Taxes of 

Foreign Teachers, Foreign Researchers, and Other Foreign Professionals, 

http://www.irs.gov/businesses/small/international/article/0,,id=188413,00.html .............32 

Stanley I. Kutler, The Wars of Watergate (1990) .................................................................. 6-7 

Travis Loller, Many Illegal Immigrants Pay Up at Tax Time, USA TODAY, Apr. 11, 2008 ...33 

Hiroshi Motomura, Immigration and Alienage, Federalism and Proposition 187, 35 Va. 

J. Int’l L. 201, 202-03 (1994) ...............................................................................................5 

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vii 

Nat’l Conf. of State Legislatures, State Limits on Contributions to Candidates, 

http://www.ncsl.org/Portals/1/documents/legismgt/limits_candidates.pdf (revised Jan. 

20, 2010) ............................................................................................................................29 

Gerald M. Rosberg, Aliens and Equal Protection: Why Not the Right to Vote?, 75 Mich. 

L. Rev. 1092 (1977) ...........................................................................................................19 

Zephyr Teachout, Extraterritorial Electioneering and the Globalization of American 

Elections, 27 Berkeley J. Int’l L. 162 (2009) .....................................................................21 

Chilton Williamson, American Suffrage from Property to Democracy 1760-1860 (1960) ....19 

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Defendant Federal Election Commission respectfully submits this opposition to 

plaintiffs’ motion for summary judgment and reply in support of the Commission’s motion to 

dismiss. Pursuant to LCvR 7(h), a Statement of Genuine Issues is attached to this brief. 

Plaintiffs’ complaint should be dismissed because the Constitution provides the political 

branches of government with the power — indeed, the duty — to preserve American democracy 

for the citizens of the United States. The long, documented history of attempts by foreign 

nationals to exert influence over this system of self-government amply demonstrates that 

Congress had a rational basis for prohibiting foreign nationals from spending money in 

American elections. And because the Supreme Court has repeatedly upheld statutes excluding 

aliens from positions in which they might interfere, even tangentially, with the democratic 

process, direct electoral spending by aliens is well within the sphere of conduct the Court has 

found Congress can reserve to citizens under the Constitution. 

Even if the prohibition on foreign national campaign spending were subject to heightened 

judicial scrutiny, the statute would be constitutional because it furthers Congress’s important and 

compelling interest in preventing foreign influence over American democracy. The statute is 

closely drawn and narrowly tailored to apply only to the category of aliens that poses the greatest 

risk of subverting the electoral system, i.e., aliens with no permanent legal tie to the United 

States. The statute is also narrowly tailored to apply only to spending on candidate campaigns, 

not to issue speech, such that even the most temporarily resident alien can engage in such speech 

without limit. Regardless of the standard of scrutiny, therefore, the foreign national statute 

passes constitutional muster, and plaintiffs’ complaint fails to state a claim on which relief can be 

granted. 

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I. THE CONSTITUTION GRANTS THE FEDERAL GOVERNMENT 

AUTHORITY TO EXCLUDE ALIENS FROM PARTICIPATING IN THE 

PROCESS OF SELF-GOVERNMENT 

The federal government’s broad authority over aliens derives directly from the text of the 

Constitution. As we have shown (FEC Mem. of P. & A. in Supp. of Mot. to Dismiss (“FEC 

Mem.”) at 13-14 (Docket No. 15)), the government may — pursuant to that authority — treat 

citizens differently from noncitizens and draw distinctions among aliens. 

First, the federal government’s power over aliens emanates from its constitutional 

authority over foreign affairs and national security. See, e.g., Toll v. Moreno, 458 U.S. 1, 10 

(1982) (explaining that “[f]ederal authority to regulate the status of aliens derives from various 

sources,” including the federal government’s “broad authority over foreign affairs”); Plyler v. 

Doe, 457 U.S. 202, 219 n.19 (1982). Section 8 of Article I, which enumerates congressional 

powers, is “richly laden with delegation of foreign policy and national security powers.” 

Schneider v. Kissinger, 412 F.3d 190, 194 (D.C. Cir. 2005); see also id. (“‘[F]oreign policy 

decisions are the subject of . . . a textual commitment.’”) (quoting Comm. of U.S. Citizens v. 

Reagan, 859 F.2d 929, 933-34 (D.C. Cir. 1988)). “Article II likewise provides allocation of 

foreign relations and national security powers to the President, the unitary chief executive.” Id. 

at 195. Second, in addition to these foreign affairs powers, the federal authority to regulate 

aliens derives from the Constitution’s Naturalization and Commerce Clauses. U.S. Const. art. I, 

§ 8, cl. 4 (“[t]o establish [a] uniform Rule of Naturalization”); cl. 3 (“[t]o regulate Commerce 

with foreign Nations”). 

Plaintiffs do not dispute that the Constitution commits to the political branches authority 

over foreign affairs and national security matters. Nor do plaintiffs assert that section 441e does 

not implicate the foreign relations or national security of the United States. Instead, plaintiffs 

2 

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erroneously contend that: (1) The Commission’s position is that the federal government has 

unreviewable, plenary power over all matters involving aliens; and (2) the foreign national 

prohibition, 2 U.S.C. § 441e, does not implicate the authority granted Congress over immigration 

matters. Neither contention is accurate. 

According to plaintiffs (Mem. in Supp. of Pls.’ Mot. for Summ. J. & in Opp. to Def.’s 

Mot. to Dismiss (“Pls.’ Mem.”) 1, 35-37 (Docket No. 19)), the Commission has argued that the 

foreign national prohibition is an unreviewable exercise of the government’s plenary power over 

aliens. The Commission made no such argument. As background to the deference owed to the 

federal political branches in alienage matters, the Commission noted the government’s power is 

plenary “[i]n the contexts of deportation and exclusion,” allowing it “to regulate aliens even on 

the basis of their ideology and the content of their ideas.” (FEC Mem. 14 (citation omitted).) 

And the government’s authority over aliens is indeed at its zenith and considered plenary in 

those contexts. See, e.g., Kleindienst v. Mandel, 408 U.S. 753, 769-70 (1972) (“[P]lenary 

congressional power to make policies and rules for exclusion of aliens has long been firmly 

established.”); Scales v. United States, 367 U.S. 203, 222 (1961) (noting that federal statute 

requiring deportation of alien members of Communist Party “rested on Congress’ . . . plenary 

power over aliens”). But the Commission did not contend that Congress acted pursuant to its 

plenary power in enacting section 441e.1

“Even outside” the contexts of deportation and exclusion (FEC Mem. 14), the authority 

granted the political branches by the Constitution allows the federal government to treat citizens 

differently from noncitizens in many circumstances. Mathews v. Diaz, 426 U.S. 67, 80 (1976) 

 

1

 Plaintiffs object that United States v. Curtiss-Wright Export Corp., 299 U.S. 304 (1936), 

and Schneider, 412 F.3d 190, do not address the relationship between plenary power and 

constitutional rights, but those cases nevertheless demonstrate the broad authority the political 

branches enjoy over foreign affairs and national security matters. 

3 

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(“Congress regularly makes rules that would be unacceptable if applied to citizens.”); see FEC 

Mem. 14-15. The political and sovereign functions of governance are one such context. (See 

FEC Mem. 15-16.) Provided there is a rational basis for them, provisions that exclude aliens 

from participating in the democratic process of self-government are thus constitutional because 

of the foundational government interests furthered by those exclusions. See, e.g., Cabell v. 

Chavez-Salido, 454 U.S. 432, 439-40 (1982) (“The exclusions of aliens from basic governmental 

processes is . . . a necessary consequence of the community’s process of political selfdefinition.”). 

The fundamental interest in protecting self-governance has allowed the government to 

deny noncitizens the right to vote, serve as police officers, or be certified as teachers. (See FEC 

Mem. 15-16.) The Commission does not, however, contend that Congress has plenary, 

unreviewable authority over any and all matters involving noncitizens, or that the Court may 

uphold the foreign national prohibition that plaintiffs challenge without determining whether a 

rational basis supports it. Nor does the Commission argue, as the government did in INS v. 

Chadha, 462 U.S. 919, 940 (1983), that this case presents a non-justiciable political question. 

Rather, section 441e is constitutional because it rationally relates to the governmental interest in 

limiting foreign influence over American elections. (See FEC Mem. 22-28.) Plaintiffs’ plenary 

power straw man argument (Pls.’ Mem. 36-37) allowed them to conjure up mosques shuttered by 

the government and random searches of nonimmigrant alien homes, but that parade of horribles 

does not follow from the limited authority the government possesses to exclude aliens from 

directly participating in the basic processes of self-government. 

Plaintiffs try to distance section 441e from the political branches’ constitutionally 

assigned authority over foreign affairs and national security by claiming (Pls.’ Mem. 35, 41) that 

4 

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the provision is not a “genuine immigration law.” But the government’s power over aliens 

extends beyond deportation and exclusion matters to the terms of their conduct while here. See, 

e.g., Mathews, 426 U.S. at 81 (holding that regulation of “our alien visitors” has long “been 

committed to the political branches of the Federal Government”); Hampton v. Mow Sun Wong, 

426 U.S. 88, 101 n.21 (1976) (“[T]he power over aliens is of a political character . . . .”).2

 

Alienage policy is not just loosely related to foreign policy and “the maintenance of a republican 

form of government”; it is “vitally and intricately interwoven” with them. Harisiades v. 

Shaughnessy, 342 U.S. 580, 588-89 (1952). Section 441e represents an exercise of the federal 

government’s authority over the foreign affairs and national security of the United States, an 

authority textually committed to the political branches. 

II. CONGRESS HAD A WELL-FOUNDED BASIS FOR ACTING TO PROTECT 

AMERICAN ELECTIONS FROM ALL FINANCIAL INFLUENCE BY FOREIGN 

NATIONALS 

Members of Congress who enacted and amended section 441e concluded, based on an 

ample evidentiary record of foreign nationals trying to influence American elections through 

campaign finance schemes, that the provision furthers the foreign affairs and national security 

interests of the United States. (See FEC Mem. 2-11.) In the 1990s, for example, a Senate 

Committee examined efforts by the Chinese government to use campaign spending to influence 

American officials and concluded that injections of foreign money into American political 

campaigns “threaten the integrity of our electoral system, foreign policy, and national security.” 

S. Rep. No. 105-167 at 4577 (1998). Congress relied on such findings and reiterated the 

 

2

 “Immigration law” has been traditionally understood as relating to the admission and 

expulsion of aliens; “alienage law” refers to other matters related to their status and conduct. See

Hiroshi Motomura, Immigration and Alienage, Federalism and Proposition 187, 35 Va. J. Int’l 

L. 201, 202-03 (1994). Plaintiffs appear to contend erroneously that courts accord no particular 

deference to the federal government regarding the entire latter field of law. 

5 

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importance of section 441e as a national security initiative when strengthening it early last 

decade. See, e.g., 148 Cong. Rec. H355 (Feb. 13, 2002) (statement of Rep. Kirk) (“In the wake 

of September 11, global security is one of the highest priorities for the United States. We must 

not undermine our nation’s federal election process by leaving a gaping loophole for foreign 

nationals to exert their potentially harmful influence.”); see also FEC Mem. 8-9. 

Plaintiffs inexplicably attempt to narrow the relevant inquiry to whether there have been 

instances of foreign governments financing electoral efforts here from overseas, and then 

contend that the Commission has put forth but one example. (See Pls.’ Mem. 32, 34; infra pp. 

26-27.) But foreign individuals, commercial interests, and governments have for decades 

financed contributions, both directly and through citizen and alien intermediaries. Congress thus 

had good reason to prohibit contributions and expenditures by all persons who have not chosen 

to live in the United States permanently. 

When Nazi representatives tried to influence American politics through the dissemination 

of propaganda in the 1930s, they were aided by both sympathetic citizens and noncitizens. (FEC 

Mem. 2-3.) Until 1966, foreign governmental and non-governmental entities funneled campaign 

contributions through agents located in the United States, including the Philippine Sugar 

Association’s attempt to influence American import quotas by subsidizing contributions to 

approximately twenty congressional campaigns. (Id. at 3.) 

Foreigners subsequently made contributions either directly to campaigns or indirectly 

through American citizens who were not agents of foreign principals. The Nixon campaign 

received contributions from citizens of various countries — including a Greek individual whose 

firm had obtained an American military contract (FEC Mem. 4) — and even contributions from 

the ruling Greek junta through an intermediary American citizen. See Stanley I. Kutler, The 

6 

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Wars of Watergate 205-08 (1990). The United States government allegedly made concessions to 

foreign contributors as a result of the enormous sums contributed in 1972. 120 Cong. Rec. 8782 

(Mar. 28, 1974) (statement of Sen. Bentsen). 

Foreign individuals and apparently even the Chinese government have also used political 

parties as recipients for both direct and indirect contributions to garner access to policy makers. 

(FEC Mem. 6-10.) Nationals of South Korea and Hong Kong contributed directly to the 

Democratic party and indirectly to the Republican party, respectively, including with funds from 

foreign corporations. (Id. at 7-8.) Ted Sioeng, a self-described agent of the Chinese 

government, contributed either his own money, or Chinese government funds, to both parties. 

(Id.) Sioeng made his contributions while spending “a substantial amount of time in the United 

States” without becoming a permanent resident, S. Rep. No. 105-167 at 5574 — similar to 

plaintiffs’ timing and status in this country. Plaintiffs accuse the Commission of “legally 

irrelevant” fearmongering (Pls.’ Mem. 45), but the above are historical events, not rhetoric. 

Plaintiffs’ suggestion (Pls.’ Mem. 25-26) that improper congressional motives haunt 

section 441e’s legislative past is similarly unfounded. Plaintiffs cite no committee report or floor 

debate from the long legislative history of the foreign national prohibition to support their 

suggestion that Congress sought to protect incumbents. Plaintiffs’ only proffered support is a 

footnote from Justice Thomas’s partial concurrence in Colorado Republican Federal Campaign 

Committee v. FEC, 518 U.S. 604, 644 n.9 (1996), in which he theorized that electoral regulations 

are often adopted to advantage incumbents. But a broad-brush characterization is hardly 

sufficient to strike down section 441e. Contribution restrictions are upheld against accusations 

that they advantage incumbents unless evidence demonstrates that the limits at issue, inter alia, 

affect “the ability of a candidate running against an incumbent officeholder to mount an effective 

7 

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challenge.” Randall v Sorrell, 548 U.S. 230, 253, 255 (2006); see also McConnell v FEC, 540 

U.S. 93, 185 n.72 (2003); Nixon v. Shrink Mo. Gov’t PAC, 528 U.S. 377, 389 n.4 (2000). 

Plaintiffs have not even attempted to explain how section 441e actually furthers a pro-incumbent 

purpose, i.e., why foreign nationals would be more likely to support challengers if permitted to 

make contributions and expenditures. 

Members of Congress were transparent about their purpose in enacting section 441e, and 

the long historical record supported a genuine concern about foreign interference with the 

nation’s self-governance. Against the backdrop of reported foreign contributions, Senator 

Bentsen explained that because the “loyalties [of foreign nationals] lie elsewhere; they lie with 

their own countries and their own governments” they have no “business in our political 

campaigns.” (FEC Mem. 21.) “The American political process,” he concluded, “should be left 

to American nationals.” (Id. at 6.) 

III. COURTS HAVE REPEATEDLY UPHELD RATIONAL EXCLUSIONS 

OF ALIENS FROM PARTICIPATING IN DEMOCRATIC PROCESSES 

A. Aliens Are Excluded from the Self-Government of the People 

Before the Constitution divides sovereign power between into three branches, declares 

that states much honor each other’s public acts, and sets forth the means for its own ratification, 

it begins with the simple phrase, “We the People of the United States.” The preeminence of 

these words is not accidental. It embodies and represents the most fundamental principle of 

democratic self-government: “[A] democratic society is ruled by its people” and no one else. 

Foley v. Connelie, 435 U.S. 291, 296 (1978); see also Buckley v. Valeo, 424 U.S. 1, 34 (1976) 

(“In a republic . . . the people are sovereign . . . .”). As explained by the Commission (FEC 

Mem. 18-21), that fundamental principal lies at the heart of this case. It is a principle so basic 

and compelling that the both the Supreme Court and the D.C. Circuit have upheld government 

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restrictions on aliens’ ability to affect the sovereign functions of government, including 

exclusions that have prevented noncitizens from engaging in First Amendment activity. 

As the Commission has explained (FEC Mem. 15-19), courts defer to regulations 

excluding aliens from the processes of self-government; such exclusions are a “necessary 

consequence of the community’s process of political self-definition.” Cabell, 454 U.S. at 439-40 

(upholding state requirement that peace officers be United States citizens); see, e.g., Ambach v. 

Norwick, 441 U.S. 68 (1979) (upholding state provision that prohibited noncitizens from being 

certified as public school teachers); Foley, 435 U.S. 291 (upholding state statute requiring police 

officers to be United States citizens). In these cases, the Court applied rational basis review in 

recognition of the “‘[s]tate’s historical power to exclude aliens from participation in its 

democratic political institutions’ as part of the sovereign’s obligation ‘to preserve the basic 

conception of a political community.’” Foley, 435 U.S. at 295-96 (quoting Sugarman v. 

Dougall, 413 U.S. 634, 648-49 (1973)); see also id. at 296 (“A new citizen has become a 

member of a Nation, part of a people distinct from others. The individual, at that point, belongs 

to the polity and is entitled to participate in the processes of democratic decisionmaking.”) 

(internal citation omitted); Cabell, 454 U.S. at 438 (“[C]itizenship . . . is a relevant ground for 

determining membership in the political community.”); Ambach, 441 U.S. at 75 (“It is because of 

this special significance of citizenship that governmental entities, when exercising the functions 

of government, have wider latitude in limiting the participation of noncitizens.”). Thus, 

plaintiffs are not part of the political community for purposes of participating in the process of 

self-government: “The exclusion of aliens from basic governmental processes is not a deficiency 

in the democratic system but a necessary consequence of the community’s process of political 

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self-definition. . . . Aliens are by definition those outside of this community.” Cabell, 454 U.S. 

at 439-40.3

 

 Congress’s authority exceeds even the “historical power” of states recognized in 

Sugarman, Foley, Ambach, and Cabell: The Constitution grants the federal government even 

more latitude to draw distinctions between citizens and aliens. See Nyquist v. Mauclet, 432 U.S. 

1, 7 n.8 (1977) (“Congress, as an aspect of its broad power over immigration and naturalization, 

enjoys rights to distinguish among aliens that are not shared by the States.”); Toll, 458 U.S. at 11

(explaining that federal government has broader powers under Constitution than states do to 

regulate conduct of aliens); Hampton, 426 U.S. 88 (explaining that citizenship requirement 

imposed by political branches could be justified by legitimate immigration or foreign affairs 

ends, e.g., as incentive for naturalization or for treaty negotiating purposes). A fortiori, if state 

statutes that exclude aliens from participating in self-government survive constitutional muster 

under rational basis review, federal provisions that draw the same distinctions and further 

interests plainly within Congress’s constitutional powers must as well, under the same low level 

of scrutiny. 

B. The Federal Power to Exclude Aliens from Self-Governance Extends to 

Restrictions that Involve First Amendment Activity 

Plaintiffs object that the cases the Commission relies upon regarding the federal 

government’s power to exclude aliens from processes of self-government are equal protection 

 

3

 The concept of a “political community” from which aliens stand apart is distinct from the 

“national community” referred to in United States v. Verdugo-Urquidez, 494 U.S. 259, 265 

(1990). In that case, the Supreme Court observed, inter alia, that the reference to “the people” in 

the First, Second, and Fourth Amendments “suggests” that persons who have “sufficient 

connections” with the United States are part of the “national community” and have those 

constitutional rights. It is undisputed that plaintiffs have some First Amendment rights, but 

Verdugo-Urquidez does not support plaintiffs’ claims here. See infra p.29 n.10. Whether or not 

plaintiffs are part of the “national community” for First Amendment purposes, they are plainly 

not part of the “political community” with rights to participate in the processes of selfgovernment under the cases cited above. 

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cases that do not involve aliens not engaged in any constitutionally protected activity, but rather 

aliens simply seeking affirmative government support. (Pls.’ Mem. 38-39.) These cases cannot, 

however, be so easily pigeonholed. Congress’s interest in insulating American democracy from 

foreign influence applies to cases in which litigants characterize their claims either as First 

Amendment or as equal protection challenges. 

In fact, at least two of the alien exclusion cases upon which the Commission relies — 

Ambach and Moving Phones Partnership v. FCC, 998 F.2d 1051 (D.C. Cir. 1993) — involved 

First Amendment activity, and in Ambach, the plaintiffs expressly raised a First Amendment 

claim that was rejected. 441 U.S. at 79 n.10. Thus, these cases indeed speak to the applicable 

level of scrutiny when a restriction on noncitizens may affect First Amendment rights. In 

Ambach, the noncitizen teacher applicants had alleged that the citizenship requirement was 

unconstitutional in light of the principles of diversity of thought and academic freedom protected 

by the First Amendment. The Court rejected that argument and explained that the citizenship 

requirement did not deprive the alien plaintiffs of any constitutional right: “The only asserted 

liberty . . . withheld by the New York statute is the opportunity to teach in the State’s schools so 

long as they elect not to become citizens of this country. This is not a liberty that is accorded 

constitutional protection.” Id. Indeed, the Court held that states may “promote particular values 

and attitudes toward government” in that context. Id. Here, plaintiffs are nonimmigrant aliens 

who have not manifested an intent to remain in the United States permanently. Because 

plaintiffs have not elected to pursue citizenship, limiting their opportunity to directly participate 

in the processes of self-government does not violate the First Amendment, so long as the 

exclusion satisfies rational basis review, as the exclusion in Ambach did. 

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The court in Ambach further explained that the citizenship restriction did not inhibit the 

noncitizen teacher applicants from “expressing freely their political or social views or from 

associating with whomever they please.” 441 U.S. at 79 n.10. As the Commission discusses

infra pp. 37-39, plaintiffs can still freely express their political views on the issues they hold 

dear. They can speak out on, and produce content for, the internet and traditional media. And 

they can attempt to contact elected representatives. Section 441e leaves open many potential 

avenues for political speech that do not implicate core self-government. 

The citizenship requirement upheld in Moving Phones affected paradigmatic speech 

activity. Cellular telephone partnerships sought in that case to invalidate a federal regulatory 

scheme that prohibited the grant of radio licenses, including licenses in the common carrier 

service, to aliens and to corporations with more than a certain level of alien ownership or 

control. 998 F.2d at 1053-55. As applicants for radio licenses, the claimants were thus seeking 

to engage in activity protected by the First Amendment. Cf. FCC v. League of Women Voters of 

Cal., 468 U.S. 364, 378 (1984) (“[B]roadcasters are engaged in a vital and independent form of 

communicative activity. As a result, the First Amendment must inform and give shape to the 

manner in which Congress exercises its regulatory power in this area.”). Despite these First 

Amendment interests, the D.C. Circuit upheld the alien ownership limits under rational basis 

review, finding that the restrictions were rationally related to the “national security policy” 

advanced, namely to “safeguard the United States from foreign influence in broadcasting.” 

Moving Phones, 998 F.2d at 1055-56 (internal quotation mark omitted). 

The threat of foreign influence over United States elections is even more clear than the 

threat posed by foreign broadcasting, as campaign funds are by definition used for campaign 

activity, and broadcasting is in most cases devoted to other topics. In light of that weighty 

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interest in preventing foreign influence, this Court need only find that this prohibition on alien 

interference in the processes of democratic self-government rationally relates to a legitimate 

state purpose. See Cabell, 454 U.S. at 439 (“‘[O]ur scrutiny will not be so demanding where we 

deal with matters resting firmly within a State’s constitutional prerogatives [and] constitutional 

responsibility for the establishment and operation of its own government.’”) (quoting Sugarman, 

413 U.S. at 648) (alteration in original). Indeed, as we have explained (FEC Mem. 16-17), the 

Supreme Court has applied strict scrutiny only to state law alien exclusions that strike “‘at the 

noncitizens’ ability to exist in the community’” by denying them benefits or rights that “if 

withheld, would directly cause economic dependence or physical harm.” Moving Phones, 998 

F.2d at 1056 & n.3 (quoting Foley, 435 U.S. at 295). Plaintiffs do not even attempt to establish 

that section 441e has harmed them physically, rendered them economically dependent, or 

otherwise affected their ability to exist in the community. It has done nothing of the sort. 

Plaintiffs contend that cases applying heightened scrutiny to campaign contribution or 

expenditure restrictions dictate the level of scrutiny here, but those cases all concerned United 

States citizens or associations of citizens. As shown above, the Constitution grants Congress 

greater power to regulate the democratic participation of noncitizens than it does of citizens. 

Thus, it would not be constitutionally appropriate to subject section 441e to the standard of 

scrutiny that applies to limits imposed on citizens; the Court should instead defer to Congress’s 

greater authority over aliens by employing lesser scrutiny than it would if presented with citizenplaintiffs seeking to participate in American elections. Cf. Johnson v. Eisentrager, 339 U.S. 763, 

770 (1950) (“The alien . . . has been accorded a generous and ascending scale of rights as he 

increases his identity with our society. Mere lawful presence in the country . . . gives him certain 

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rights; they become more extensive and secure when he makes preliminary declaration of 

intention to become a citizen, and they expand to those of full citizenship upon naturalization.”). 

Contrary to the suggestions of plaintiffs and amicus (Pls.’ Mem. 19; Br. of Amicus 

Curiae Ill. Coalition for Immigrant & Refugee Rights (“Amicus Br.”) 14-15), the Court’s 

reference in Citizens United to the government’s potentially “compelling interest in preventing 

foreign [nationals] from influencing our Nation’s political process,” Citizens United v. FEC, 130 

S. Ct. 876, 911 (2010), has no bearing on the standard of scrutiny applicable here. That 

statement related to whether the government’s interest in preventing foreign influence would be 

sufficient to uphold the entire prohibition on corporate independent expenditures, 2 U.S.C. 

§ 441b — a statute that was subject to strict scrutiny. See id. (“Section 441b therefore would be 

overbroad even if we assumed, arguendo, that the Government has a compelling interest . . . .”) 

(first emphasis added). In any event, the Court explicitly declined to opine on any hypothetical 

challenge to section 441e. Id. 

Plaintiffs also cite Bridges v. Wixon, 326 U.S. 135 (1945) (Murphy, J., concurring), and 

several nonbinding circuit court opinions to support plaintiffs’ argument that First Amendment 

scrutiny is identical for citizens and noncitizens. (See Pls.’ Mem. 12-14, 37-40). But these cases 

merely stand for the unremarkable proposition that aliens in the United States have First 

Amendment rights — a proposition that the Commission has not disputed (see FEC Mem. 27), 

and that does not resolve the question presented here, i.e., whether the First Amendment 

prohibits Congress from restricting noncitizen participation in the processes of democratic selfrule.4

 Furthermore, Justice Murphy’s concurrence in Bridges was not joined by any other 

 

4

 The other Supreme Court case on which plaintiffs rely (Pls.’ Mem. 13, 40) is Harisiades 

v. Shaughnessy, 342 U.S. 580 (1952), in which the Court held that deporting aliens for being 

members of the Communist party did not violate the First Amendment. Id. at 592. The Court’s 

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Justice, and plaintiffs’ statement (Pls.’ Mem. 37) that the concurrence was subsequently 

“adopted” by the full Court is misleading: The Court merely cited the concurrence in restricting 

aliens’ Fourth Amendment rights, see infra p. 29 n.10, and in holding that an alien “may not be 

deprived of his life, liberty or property without due process of law” under the Fifth Amendment, 

Kwong Hai Chew v. Colding, 344 U.S. 590, 596 n.5 (1953).5

 The Court has never “adopted” 

Justice Murphy’s concurrence in the First Amendment context. Even if it had, this is not a case 

like Bridges involving a permanent legal resident engaged in non-election activity (labor 

organizing) whom the government had singled out for deportation. 326 U.S. at 137-41. 

Consistent with his intention to reside in the United States permanently, the petitioner in Bridges

had been here for twenty-five years. Id. at 140. The government is not selectively placing 

nonimmigrant aliens into jail pursuant to section 441e as plaintiffs contend (at 41); the provision 

instead functions as a constitutionally permissible requirement for aliens who choose to reside 

here temporarily. 

On even shakier legal footing is plaintiffs’ extensive reliance on American-Arab AntiDiscrimination Committee v. Reno, 70 F.3d 1045 (9th Cir. 1995). Plaintiffs fail to note that the 

case was vacated by the Supreme Court because the claims fell outside the federal courts’ 

jurisdiction. 525 U.S. 471, 492 (1999). 

 

brief analysis in that case explicitly declined to decide whether or to what extent the First 

Amendment’s protection of citizens’ communist activities would apply to aliens: “Different 

formulae have been applied in different situations and the test applicable to the Communist Party 

has been stated too recently to make further discussion at this time profitable. We think the First 

Amendment does not prevent the deportation of these aliens.” Id. 

5

 Similarly, plaintiffs cite (Pls.’ Mem. 12, 37) Wong Wing v. United States, 163 U.S. 228 

(1896), which held that due process considerations did not allow aliens to be ordered to perform 

hard labor before being deported, and Fong Yue Ting v. United States, 149 U.S. 698 (1893), 

which upheld what would now be considered grotesquely unconstitutional procedures for 

deporting Chinese immigrants. Neither of these cases remotely touched on the First Amendment 

rights of aliens, much less their specific rights to participate in the democratic process. 

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Finally, plaintiffs cite this Court’s decisions in Rafeedie v. INS, 795 F. Supp. 13 (D.D.C. 

1992), and Brunnenkant v. Laird, 360 F. Supp. 1330, 1332 (D.D.C. 1973), for the proposition 

that the First Amendment applies to temporarily resident aliens in exactly the same manner it 

applies to citizens, at least outside the context of exclusion and deportation matters. (See Pls.’ 

Mem. 14, 38.) But the plaintiffs in these cases were legal permanent residents of the United 

States. See Rafeedie, 795 F. Supp. at 16; Brunnenkant, 360 F. Supp. at 1332 (describing plaintiff 

as “an immigrant alien who has not completed his naturalization”). Legal permanent residents 

are categorically exempt from section 441e, see infra pp. 33-37, and their constitutional rights 

are neither the same as those of nonimmigrants, see id., nor at issue in this case. 

C. Courts Use Rational Basis Review for Alienage Classifications that Involve 

Sovereign Functions of Government 

The common principle underlying the cases the Commission relies upon is that courts 

address certain state law alienage classifications that primarily affect economic interests under 

heightened scrutiny, but apply relaxed scrutiny to state law classifications that affect the 

sovereign functions of government, as well as to all federal classifications other than those that 

affect the ability of aliens to exist in the community. Thus, in all cases involving the “sovereign” 

— as opposed to “economic” — functions of government, citizenship restrictions that advance 

those sovereign interests are not subject to strict scrutiny. Cabell, 454 U.S. at 438-39 (citing 

Ambach, 441 U.S. at 73-74, and Foley, 435 U.S. at 295). “While not retreating from the position 

that restrictions on lawfully resident aliens that primarily affect economic interests are subject to 

heightened judicial scrutiny, we have concluded that strict scrutiny is out of place when the 

restriction primarily serves a political function . . . .” Id. at 439 (citations omitted). The Court 

has explained that such political functions include “a state’s interest in establishing its own form 

of government, and in limiting participation in that government to those who are within the basic 

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conception of a political community.” Id. at 438 (internal quotation marks omitted). The 

national security interests advanced in Moving Phones clearly involve the sovereign functions of 

government. Thus, as Ambach and Moving Phones amply demonstrate, regarding the sovereign 

or political functions of government, strict scrutiny is “out of place,” Cabell, 454 U.S. at 439,

even when exclusions have prevented noncitizens from engaging in First Amendment activity. 

Plaintiffs cannot diminish these cases as standing only for the principle that courts apply 

relaxed scrutiny to classifications that exclude aliens from positions involving the exercise of 

governmental authority. (See Pls.’ Mem. 38-39.) According to the Supreme Court, citizen 

restrictions are permissible in more than just employment matters. In Cabell, the Court 

explained that “political function[s]” include those “‘matters resting firmly within a State’s 

constitutional prerogatives [and] constitutional responsibility for the establishment and operation

of its own government, as well as the qualifications of an appropriately designated class of 

public office holders.’” 454 U.S. at 439 (quoting Sugarman, 413 U.S. at 648) (emphasis added). 

Because section 441e advances just such a matter resting firmly within the federal government’s 

constitutional responsibility, strict scrutiny is not the appropriate standard against which to 

measure it. 

Indeed, section 441e promotes an interest more important and fundamental than even the 

employment restrictions upheld in Foley and Ambach. In Foley, the Court held that the state 

could require police officers to be United States citizens to help ensure that those who participate 

directly in the execution of public policy are “more familiar with and sympathetic to American 

traditions.” 435 U.S. at 299-300. Similarly, when the Court in Ambach upheld a citizenship 

requirement for teachers, its ruling turned on the critical role teachers played in developing 

students’ attitudes toward government and the political process. 441 U.S. at 75-77. While 

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“[p]ublic education, like the police function, fulfills a most fundamental obligation of 

government to its constituency,” id. at 76 (internal quotation marks omitted and emphasis 

added), ensuring that government represents its constituency is the most fundamental obligation 

of government. Section 441e furthers that interest, and this Court should therefore review it 

under a relaxed standard of scrutiny. 

D. Plaintiffs’ Ties to the United States Are Temporary and in Some Instances 

Shorter than the Terms of Offices They Seek to Influence 

The governmental interests in this case are foundational and permanent; the plaintiffs’ 

interests are not. The importance of an American election to a nonimmigrant alien — no matter 

how strong the alien’s views on issues of American public policy — is inherently limited by the 

fact that the alien’s exposure to the result of the election is temporary. Here, for example, unless 

she is granted an extension, plaintiff Steiman’s authorization to reside and work in the United 

States will expire in June 2012. (See Compl. ¶ 15; see also FEC Statement of Genuine Issues ¶ 7 

(noting that visa extension is not granted automatically).) Yet she wishes to contribute to a 

candidate for President of the United States (Compl. ¶ 18(b)) — a candidate who would not be 

nominated until August 2012, who would not stand for general election until November 2012, 

and who, if elected, would not take office until January 2013, more than six months after 

plaintiff had returned to one of her home countries. Her interest in that election, therefore, is 

considerably more attenuated than the equivalent interest of United States citizens or permanent 

residents, who will remain here permanently when the administration takes office in 2013 and 

beyond. Indeed, even for elections that occur during plaintiffs’ stay in the United States, the 

limit on their time in this country means that they will be subject to few, if any, of the effects that 

arise from the elections they wish to influence. Whether before or after the election, 

nonimmigrant aliens will inevitably be required to leave the United States, while the laws and 

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policies established as a result of the elections will endure for citizens and permanent residents. 

Plaintiffs’ interest in influencing American elections therefore pales in comparison to the 

interests of those who have a right of self-governance and will be subject to the decisions of 

elected officials long after plaintiffs have departed. 

Plaintiffs’ claimed First Amendment interests in directly participating in American 

elections are not only ephemeral, but also find little support in the voting history upon which 

they rely. Plaintiffs claim (Pls.’ Mem. 10-11) that they have a right under the First Amendment 

to participate directly in elections because aliens were once permitted to vote. But that history 

suggests instead that aliens who remained loyal to another country did not vote as a matter of 

right. Although some states allowed certain noncitizens to vote in early republican times, some, 

including Pennsylvania, South Carolina, and Vermont, required such aliens to first take a loyalty 

oath. See Chilton Williamson, American Suffrage from Property to Democracy 1760-1860 at 

96-99, 119-20 (1960). Even the states referenced by plaintiffs thus did not view noncitizen 

voting as automatically conferred, and imposed a condition plaintiffs have not met. Moreover, 

those voting rights were soon — within the lifetimes of many of the Constitution’s framers and 

ratifiers — revoked. Maryland changed its constitutional definition of voters from “inhabitants” 

to “citizens” in 1810, Connecticut in 1818, New York and Massachusetts in 1821, Vermont in 

1828, and Virginia in 1831. See Gerald M. Rosberg, Aliens and Equal Protection: Why Not the 

Right to Vote?, 75 Mich. L. Rev. 1092, 1097 (1977). Similarly, many of the newly admitted 

states — Indiana in 1816, Mississippi in 1817, Alabama in 1819, Maine in 1820, and Missouri in 

1821 — confined the right to vote to citizens. Id. In any event, plaintiffs do not now have the 

right to vote, see Sugarman, 413 U.S. at 648-49, and they have not claimed otherwise. See infra

pp. 40-43 (discussing plaintiffs’ arguments regarding voting). Thus, plaintiffs cannot rely on any 

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flexibility that may exist to allow noncitizens limited voting rights to suggest that the First 

Amendment grants aliens the right to participate directly in elections. 

E. Section 441e Is Content Neutral and Viewpoint Neutral 

Plaintiffs do not dispute that their primary loyalties are not to the United States, the 

nation whose policies they seek to affect. Rather, plaintiffs attempt to convert Congress’s 

legitimate interest in protecting “the integrity of the decision-making process of our 

Government” from those whose “loyalties lie elsewhere” into content or viewpoint 

discrimination. (Pls.’ Mem. 27-29.) The foreign national prohibition represents neither. It does 

not merely target certain nonimmigrant aliens because their views may be inimical to the foreign 

policy and national security of the United States; it prohibits all of them from making 

contributions and expenditures because foreign nationals have no legitimate role to play in 

American elections, whether their views and objectives are innocuous or not. 

“The principal inquiry in determining content neutrality . . . is whether the government 

has adopted a regulation of speech because of disagreement with the message it conveys.” Ward 

v. Rock Against Racism, 491 U.S. 781, 791 (1989). As the Court explained in Ward, the 

government’s purposes control in this analysis. A regulation that “serves purposes unrelated to 

the content of expression” is neutral. Id. By vindicating the elemental proposition that “a 

democratic society is ruled by its people,” Foley, 435 U.S. at 296, and that “[s]elf-government . . 

. begins by defining the scope of the community of the governed and thus of the governors as 

well,” Cabell, 454 U.S. at 439, the foreign national prohibition serves purposes unrelated to 

whatever message nonimmigrant aliens may wish to express through election contributions or 

expenditures. Under section 441e, plaintiffs are prohibited from making contributions or 

expenditures whether they wish to demonstrate admiration for candidates who they feel best 

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represent American democratic traditions or to influence candidates to actively press the interests 

of a foreign power. Cf. Holder v. Humanitarian Law Project, 130 S. Ct. 2705, 2723-24 (2010) 

(explaining that federal statute was content-based regulation because “[p]laintiffs want to speak . 

. . and whether they may do so under [the statute] depends on what they [may] say”).6

 

Nor is the foreign national prohibition viewpoint discriminatory. “The government must 

abstain from regulating speech when the specific motivating ideology or the opinion or 

perspective of the speaker is the rationale for the restriction.” Rosenberger v. Rector & Visitors 

of the Univ. of Va., 515 U.S. 819, 829 (1995). Section 441e does not prohibit certain viewpoints 

based upon the government’s agreement or disagreement with the viewpoint expressed. See Hill 

v. Colorado, 530 U.S. 703, 723-25 (2000) (holding that statute limiting protests at abortion 

facilities drew no distinctions between types of speech and so was viewpoint neutral); Ruggiero 

v. FCC, 317 F.3d 239, 244 (D.C. Cir. 2003) (en banc) (rejecting argument that regulation 

applying only to unlicensed broadcasters was viewpoint discrimination: “[T]he [regulation] 

applies equally to all unlicensed broadcasters regardless of the motivation for, or the message 

disseminated by, their illegal broadcasting.”). It applies with equal justification and to equal 

effect no matter the ideology or opinion of the alien who falls within its prohibitions. Indeed, 

 

6

 Plaintiffs object that they do not seek to govern, but only to speak to those who do. (Pls.’ 

Mem. 39.) But as the Commission explained in its opening brief (FEC Mem. 27) and again here 

(see supra p. 12 and infra pp. 37-39), plaintiffs can speak out without limit on any issue. There 

are, in fact, an ever-expanding number of avenues through which plaintiffs can press specific 

issues like “net neutrality” (Compl. ¶ 12) or advance more general principles such as “increasing 

economic liberty” (id. ¶ 17). See generally Zephyr Teachout, Extraterritorial Electioneering and 

the Globalization of American Elections, 27 Berkeley J. Int’l L. 162, 173-80 (2009) (“[P]eople 

outside the country may not give money to political candidates. Nonetheless, almost all other 

political tools are accessible to people around the globe,” including broadcast media, blogs, 

email, text, instant messaging, and social networking) (footnote omitted). 

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plaintiffs themselves have illustrated this point by alleging that they espouse opposing political 

views.7

 In sum, section 441e rationally relates to Congress’s legitimate interest in limiting the 

opportunities of those whose allegiances lie with another sovereign to influence American 

elections. 

IV. EVEN IF REGULATION OF ALIEN CONTRIBUTIONS WERE SUBJECT TO 

THE SAME SCRUTINY AS REGULATION OF CITIZEN CONTRIBUTIONS, 

THE APPROPRIATE STANDARD WOULD BE INTERMEDIATE SCRUTINY 

Plaintiffs rely on Buckley for their argument that strict scrutiny applies to section 441e’s 

prohibition on foreign contributions. (See Pls.’ Mem. 17-18.) Yet even if Buckley’s analysis of 

limits on citizen contributions were applicable here, Buckley did not apply strict scrutiny in 

analyzing and upholding FECA’s contribution limits, as plaintiffs acknowledge (Pls.’ Mem. 17). 

In fact, the standard the Court applied — sustaining the statute because it was closely drawn to 

further the government’s “sufficiently important interest,” Buckley, 424 U.S. at 25 — is a “lesser 

demand” than strict scrutiny, Shrink Mo., 528 U.S. at 387-88, and is a form of what the Court 

generally refers to as intermediate scrutiny. See, e.g., Adarand Constructors, Inc. v. Pena, 515 

U.S. 200, 220 (1995) (noting that intermediate scrutiny standard requires statute to be 

“substantially related to the achievement of an important governmental objective” (internal 

quotation marks omitted)). 

Plaintiffs nonetheless assert (Pls.’ Mem. 18) that the “logic” of Buckley’s analysis 

“dictates” that strict scrutiny apply here because the provisions at issue in Buckley merely limited 

 

7

 Plaintiffs’ attempt (Pls.’ Mem. 29) to import the incitement test of Brandenburg v. Ohio, 

395 U.S. 444 (1969), into this case is unavailing. Neither Brandenburg nor Communist Party of 

Indiana v. Whitcomb, 414 U.S. 441 (1974), involved election spending by aliens, resident or 

otherwise. Moreover, because section 441e is not a regulation targeting advocacy that poses a 

threat of producing imminent lawless action, the Brandenburg test does not apply here. 

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contributions, while section 441e is a contribution ban. But the Supreme Court has twice 

addressed contribution bans directly, and it has applied intermediate scrutiny both times. First, 

in FEC v. Beaumont, 539 U.S. 146 (2003), the Court rejected the exact argument plaintiffs raise 

here and upheld under intermediate scrutiny FECA’s prohibition on political contributions by 

corporations: 

[The would-be contributor] argues that application of the ban on its 

contributions should be subject to a strict level of scrutiny, on the ground 

that § 441b does not merely limit contributions, but bans them on the basis 

of their source. . . . [I]nstead of requiring contribution regulations to be 

narrowly tailored to serve a compelling governmental interest, a 

contribution limit involving significant interference with associational 

rights passes muster if it satisfies the lesser demand of being closely drawn 

to match a sufficiently important interest. . . . It is not that the difference 

between a ban and a limit is to be ignored; it is just that the time to 

consider it is when applying scrutiny at the level selected, not in selecting 

the standard of review itself. 

Beaumont, 539 U.S. at 161-62 (internal quotation marks and citations omitted). Then, in 

McConnell, eight Justices applied the same intermediate scrutiny standard in striking down the 

prohibition on contributions by minors in the Bipartisan Campaign Reform Act of 2002 

(“BCRA”). See 540 U.S. at 231-32 (Rehnquist, C.J.) (applying “sufficiently important interest” 

test); see also id. at 136 (upholding prohibition on all “soft-money” contributions to political 

parties under intermediate scrutiny). In light of these explicit holdings, plaintiffs’ appeal to the 

generalized “logic” of Buckley fails: Under the standard applied by Buckley and its progeny to 

regulation of contributions by citizens, section 441e’s prohibition of foreign national 

contributions would be subject only to intermediate scrutiny.8

 

 

8

 In any event, plaintiffs misread Buckley. Buckley reasoned that lesser scrutiny applies to 

contribution limits because they restrict “one important means of associating with a candidate or 

committee, but leave the contributor free to become a member of any political association and to 

assist personally . . . on behalf of candidates.’” 424 U.S. at 22; see also McConnell, 540 U.S. at 

141 (quoting Buckley). Because section 441e places no restriction on foreign nationals’ ability 

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As to prohibitions on expenditures, the Commission agrees with plaintiffs (Pls.’ Mem. 

18-19) that courts have historically subjected prohibitions on citizens’ expenditures to strict 

scrutiny.9

 

V. SECTION 441e IS CONSTITUTIONAL UNDER ANY LEVEL OF SCRUTINY 

Even if this Court were to apply the intermediate scrutiny applicable to limitations on 

citizens’ contributions and strict scrutiny applicable to domestic expenditure restrictions, 

plaintiffs’ challenge to section 441e would fail. The statute furthers the important and 

compelling governmental interest of preventing foreign nationals from influencing American 

elections. Section 441e is also closely drawn and narrowly tailored: It reaches only financial 

expenditures regarding candidate campaigns — not issue advocacy — and it does not apply to 

aliens who have established permanent legal ties to the United States. 

A. Section 441e Furthers the Important and Compelling Governmental Interest 

of Protecting American Democracy from Foreign Influence 

Plaintiffs do not appear to dispute, at least in principle, that protecting the American 

democratic system from foreign influence is an important and compelling governmental interest. 

Nor could they, for not since the Declaration of Independence has there been any question that 

the American people are the only proper sovereign in this nation. Thus, short of defending the 

country from physical attack by foreign powers, cf. Holder, 130 S. Ct. at 2728-29 (upholding 

 

“to become a member of any political association” or to “assist personally . . . on behalf of 

candidates,” Buckley’s rationale would support the application of intermediate scrutiny, at most. 

9

 In discussing the scrutiny applicable to expenditure restrictions, plaintiffs conflate 

independent expenditures with “donations to independent political groups.” (See Pls.’ Mem. 19.) 

A donation to a “political group” is a contribution, not an independent expenditure. See 2 U.S.C. 

§ 441a(a)(1) (setting limits on contributions to political committees or “PACs”); 2 U.S.C. 

§ 431(17) (defining “independent expenditure”). In any event, the specific political group to 

which plaintiff Steiman allegedly wishes to contribute (Compl. ¶ 18(d)) “do[es] not accept 

donations from . . . foreign nationals.” Club for Growth, Frequently Asked Questions, 

http://www.clubforgrowth.org/aboutus/?subsec=0&id=17#M10 (last visited Feb. 28, 2011).

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statute banning, inter alia, speech that provides support to terrorist groups), it is difficult to 

conceive of an interest more compelling than preserving the exclusive ability of Americans to 

govern themselves. Indeed, compelling governmental interests have been found in legislation 

addressing concerns that, while serious, are not as foundational as citizen self-governance. See, 

e.g., Fla. Bar v. Went For It, Inc., 515 U.S. 618, 625 (1995) (“On various occasions we have 

accepted the proposition that States have a compelling interest in the practice of professions 

within their boundaries . . . .”) (internal quotation marks omitted); Nat’l Ass’n of Mfrs. v. Taylor, 

582 F.3d 1, 15 (D.C. Cir. 2009) (“[I]t is plain that the government has a compelling interest in 

providing the public . . . with information regarding who is being hired, who is putting up the 

money, and how much they are spending to influence public officials.”) (internal quotation 

marks omitted); Blount v. SEC, 61 F.3d 938, 944 (D.C. Cir. 1995) (finding compelling 

governmental interest in “protecting investors in municipal bonds from fraud”). 

Rather than dispute the compelling nature of the government’s interest, plaintiffs raise a 

variety of objections to the wealth of evidence Congress amassed in designing section 441e to 

further that interest. None of these objections advances plaintiffs’ challenge. 

“The quantum of empirical evidence needed to satisfy heightened judicial scrutiny of 

legislative judgments will vary up or down with the novelty and plausibility of the justification 

raised.” Shrink Mo., 528 U.S. at 391 (finding state contribution limits justified by evidence of 

illegal contributions in other cases, despite absence of legislative history regarding specific 

statutes at issue); see also McConnell, 540 U.S. at 144 (quoting Shrink Missouri and examining 

evidence Congress collected in passing BCRA). The “empirical evidence” requirement is at its 

nadir “where, as here, we deal with a congressional judgment that has remained essentially 

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unchanged throughout a century of careful legislative adjustment.” See Beaumont, 539 U.S. at 

162 n.9 (internal quotation marks omitted). 

In its opening brief and again supra, the Commission has set forth at length the decadeslong history of congressional factfinding that led to each refinement of what is now section 441e. 

See FEC Mem. 2-11; supra pp. 5-7. This record demonstrates beyond any doubt the reality that 

foreign nationals have repeatedly attempted to infiltrate the American government monetarily, 

from German propaganda in the 1930s through the covert funneling of campaign funds in the 

Watergate era to the brazen soft-money contributions of the 1990s. Yet plaintiffs disregard 

almost the entire evidentiary record, declaring that the Commission “offers but a single example 

suggestive of any attempt by a foreign sovereign to circumvent the (legitimate) ban on political 

spending from overseas.” (Pls.’ Mem. 32; see also id. at 34 (referring to same incident as “the 

Commission’s only example of circumvention”).) Plaintiffs’ assertion is both misleading and 

false. It is misleading because the evidence of foreign attempts to infiltrate American elections 

encompasses far more than activities by “foreign sovereign[s]”: Foreign individuals and 

corporations, too, have spent money to influence American campaigns, and section 441e is 

directed to preventing these well-documented efforts as much as it is to the efforts of foreign 

governments. See FEC Mem. 3-4, 7-8; supra pp. 6-7. And plaintiffs’ statement is false because, 

even if the record were arbitrarily narrowed to foreign governmental activity, there are numerous 

documented instances of such activity. (See, e.g., FEC Mem. 2 (discussing activity of Nazi 

party), 8-9 (Chinese government); supra pp. 6-7 (Greek government).) 

The only basis plaintiffs articulate (see Pls.’ Mem. 32-34) as to why the Court should 

disregard the remainder of the evidentiary record is that some of the congressionally documented 

instances of foreign spending were so-called “conduit” contributions — i.e., contributions 

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funneled through an intermediary — which are separately prohibited by 2 U.S.C. § 441f. 

Because such activity is already illegal, plaintiffs argue, “it is far from clear” that the additional 

prohibitions of section 441e “provide any marginal value” that would outweigh their First 

Amendment implications. (See Pls.’ Mem. 33.) But, as noted above, Congress uncovered many 

examples of direct foreign spending on American elections — activity that section 441f does not 

reach. For example, citizens of Canada and Greece helped finance President Nixon’s reelection 

campaign in 1972 (FEC Mem. 4), and a South Korean national gave $250,000 to the Democratic 

National Committee to further his own business interests by gaining access to President Clinton 

(Id. at 7-8). Indeed, the primary purpose of the 1974 amendments to the foreign national statute, 

which had previously reached spending only by agents of foreign nationals (i.e., indirect 

spending), was to ensure that it would also reach direct spending. (Id. at 4-5.) And BCRA 

section 303, 116 Stat. 96, eliminated any remaining ambiguity by adding the phrase “directly or 

indirectly” to modify the entire spending prohibition. See 2 U.S.C. § 441e(a)(1). Thus, section 

441e reaches not only the indirect foreign spending that is also illegal under section 441f, but 

also the well-documented direct foreign spending that troubled Congress enough to pass new 

legislation in 1974 and again in 2002. 

Furthermore, even as to indirect spending, section 441e provides considerable “marginal 

value.” First, unlike section 441f, it applies to state and local elections, making it the sole 

nationwide restriction on foreign conduit contributions in such elections. Second, as the 

Commission noted in its opening brief (FEC Mem. 26-27), one of the many troubling scenarios 

to which plaintiffs’ relief might give rise is an authoritarian government pressuring or ordering 

its citizens who temporarily live in the United States to contribute their own money to specified 

parties or candidates. Cf. Evan Hill, Libyans in US Allege Coercion, Al Jazeera English (Feb. 

27 

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17, 2011), http://english.aljazeera.net/news/africa/2011/02/2011217184949502493.html 

(describing Libyan government’s threat to revoke scholarships of Libyan students in United 

States if students did not travel to Washington and participate in pro-government demonstration). 

Such contributions would not be illegal under section 441f, so they would not be prohibited at all 

if plaintiffs were to prevail here. With hundreds of thousands of subjects of authoritarian 

governments residing and working in the United States, the only statute preventing this flow of 

money into American elections is section 441e. 

In addition to the problems documented above, the Commission has demonstrated (FEC 

Mem. 22-27) additional dangers that would be posed by a declaration that section 441e is 

unconstitutional “as applied to foreign nationals lawfully residing and working in the United 

States.” (Compl. at 7 (Request for Relief).) Attempting to backtrack from the plain language of 

their complaint, plaintiffs now assure the Court that such scenarios “are derived from legal 

positions wrongly attributed to Plaintiffs.” (Pls.’ Mem. 42.) Yet plaintiffs provide no principled 

basis for distinguishing any of these scenarios from their own case. (See Pls.’ Mem. 42-44.) 

1. The Commission noted that plaintiffs’ relief would grant an agent of a foreign 

government working in the United States on behalf of his home country a constitutional right to 

spend money on American campaigns (FEC Mem. 23), despite the fact that one of the most 

problematic historical examples of foreign involvement in domestic campaigns involved 

contributions by just such an agent (see id. (discussing Sioeng case)). Plaintiffs respond by 

adding an enormous caveat to their entire cause of action: They now assert (Pls.’ Mem. 42) that 

the only aliens entitled to relief are those with “sufficient connection” to the United States, and 

that a foreign agent “plainly” does not meet that test. But what constitutes a “sufficient 

connection” under plaintiffs’ theory is entirely unclear, as plaintiffs themselves seem to 

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acknowledge. (See Pls.’ Mem. 16 (arguing that plaintiffs should prevail “[w]hatever the precise 

location” of the constitutional boundary); Amicus Br. 12 (arguing that “nonpermanent” residents 

satisfy test “[w]hatever the precise boundaries of the line”).)10 Indeed, this tautological assertion 

— that an alien’s connection to the United States is sufficient for constitutional purposes if it 

constitutes a “sufficient connection” — is so vague as to be meaningless as a limiting principle. 

Plaintiffs’ inability to offer a more principled distinction between themselves and these other 

aliens “lawfully residing and working in the United States” therefore highlights even more 

starkly the conflict between the dangers identified by Congress and the result plaintiffs seek. 

2. The Commission noted that many states have chosen not to impose contribution 

limits on United States citizens, and so, if plaintiffs were to prevail, foreign nationals living and 

working in the United States would be permitted to spend unlimited amounts of money in these 

states’ elections.11 (FEC Mem. 23-24.) Plaintiffs respond that the states could simply impose 

limits on everyone. (Pls.’ Mem. 43.) But that is no small matter: The states are sovereign 

powers that have chosen, as a matter of public policy and in an exercise of representative 

democracy, not to limit the size of citizens’ contributions. A judgment in plaintiffs’ favor, 

therefore, would require these states either to accept unlimited foreign money, or their 

 

10 Plaintiffs and amicus derive their proposed test from United States v. Verdugo-Urquidez, 

494 U.S. 259 (1990), in which the Court held that a Mexican citizen who had been arrested in 

Mexico and then incarcerated in the United States was not entitled to Fourth Amendment 

protection. Because the plaintiff in Verdugo-Urquidez raised no claim under the First 

Amendment — and he lost the Fourth Amendment claim he did raise — it is implausible at best 

to read this case as addressing, much less deciding, the extent of temporarily resident aliens’ 

First Amendment rights. Indeed, the quotations on which plaintiffs rely (one of which is a 

parenthetical from the middle of a string citation) explicitly distinguish the Fourth Amendment 

question in Verdugo-Urquidez from other provisions of the Bill of Rights. Id. at 265, 271 

(quoted at Pls.’ Mem. 13). 

11 According to the National Conference of State Legislatures, these states are Alabama, 

Indiana, Iowa, Mississippi, Missouri, Nebraska, North Dakota, Oregon, Pennsylvania, Texas, 

Utah, and Virginia. See State Limits on Contributions to Candidates, 

http://www.ncsl.org/Portals/1/documents/legismgt/limits_candidates.pdf (revised Jan. 20, 2010). 

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legislatures and governors would be forced to override their own citizens’ wishes by imposing 

blanket limits on all contributors. 

3. The Commission noted that, given the large number of foreign nationals living 

and working in the United States, any concerted financial effort by even a portion of the alien 

population would be sufficient to sway many elections, at least at the state and local level. (FEC 

Mem. 25.) Plaintiffs respond (Pls.’ Mem. 43) that foreign nationals are hardly a monolithic 

political entity (which the Commission does not dispute), and that an “inevitable feature of 

democracy” is like-minded people banding together politically. But plaintiffs fail to account for 

the fact that the domestic groups they mention comprise free citizens, and there is no question 

that citizens have the right to pool their resources in an exercise of democratic self-government 

while excluding noncitizens from that exercise. In addition, many foreign nationals are subjects 

of authoritarian countries, which can direct — or even force — their citizens to spend money as a 

bloc; no entity possesses that power over the groups of Americans that plaintiffs mention, such 

as public employees and teachers. 

4. The Commission noted that foreign corporations doing business in the United 

States appear to meet plaintiffs’ criteria for relief, i.e., transacting business and having legal 

“residence.” (FEC Mem. 25-26.) Plaintiffs respond that “it is not clear” whether plaintiffs’ 

conception of alien residence would apply to corporations. (Pls.’ Mem. 44.) Plaintiffs fail, 

however, to offer any principled distinction between themselves and foreign corporations 

transacting business domestically. Thus, plaintiffs’ relief may enable such corporations to make 

expenditures nationwide and to make contributions in the states where domestic corporations are 

allowed to do so. And even if this is not plaintiffs’ intent, the Supreme Court has rejected the 

principle that corporations may be prohibited from engaging in expenditures that are legal for 

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individuals. See generally Citizens United, 130 S. Ct. 876. So, whatever rights plaintiffs claim 

for themselves as to expenditures may very well apply to every foreign corporation that has 

established residence in the United States. If plaintiffs intend the Court’s ruling to stop short of 

extending to foreign corporations, they have failed to supply the reasoning that would so limit it. 

5. The Commission noted (FEC Mem. 27) that a significant number of foreign 

nationals meeting plaintiffs’ criteria for relief are citizens of countries that are openly hostile to 

the United States and its interests. Plaintiffs question whether such aliens could do any 

meaningful harm to the United States “by donating a few hundred dollars each to a local 

congressional candidate.” (Pls.’ Mem. 44-45.) That glib response ignores the dangers at hand. 

While a limited number of hundred-dollar donations to a federal candidate is unlikely to 

drastically sway the candidate’s election, those contributions have some effect; indeed, that is 

why most people contribute and what makes them contributions under the law. See 2 U.S.C. 

§ 431(8) (“The term ‘contribution’ includes any . . . deposit of money . . . for the purpose of 

influencing any election for Federal office.”) (emphasis added). 

Because no foreign influence over American elections is appropriate, Congress has the 

authority to prohibit even limited foreign contributions. See infra pp. 43-44. Furthermore, many 

American elections at the state or local level do not have contribution limits. A six-figure 

donation to a candidate for state treasurer, for example, can not only alter the course of a 

campaign, but can also significantly influence the winner’s actions in office. (See FEC Mem. 

23-24 (discussing case in which foreign national gave $100,000 to California state treasurer and 

later arranged for business to receive work from treasurer).) Striking down section 441e would 

therefore provide an opportunity for foreign nationals from hostile nations to generate 

officeholders indebted to them. See McConnell, 540 U.S. at 153 (upholding contribution limits 

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in light of “the danger that officeholders will decide issues not on the merits or the desires of 

their constituencies, but according to the wishes of those who have made large financial 

contributions”). Congress has determined that section 441e is the best means of furthering the 

government’s important and compelling interest in preventing that scenario, and plaintiffs offer 

no substantive argument to the contrary. 

6. Finally, plaintiffs refer repeatedly to the fact that they live, work, and pay taxes in 

the United States as a basis for their claims.12 (See, e.g., Pls.’ Mem. 1, 7, 16.) Yet they 

explicitly acknowledge that mere residence is insufficient to warrant their claimed relief (id. at 

16), and they tacitly acknowledge the same regarding employment (see id. (excluding “some 

temporary workers” from category entitled to relief)). Even weaker is their appeal to taxation, as 

some people who have never set foot in the United States pay taxes here, see 26 U.S.C. 

§§ 871(a)(1)(A), 872(a) (defining nonresident taxable income); Comm’r v. Wodehouse, 337 U.S. 

369, 377 (1949) (finding British citizen residing in France liable for taxes on income from 

royalty payments received from United States), and plaintiffs concede that such aliens do not 

have the right to spend money in American elections (Pls.’ Mem. 7). 

Thus, none of plaintiffs’ criteria is individually sufficient to lead to the result they seek, 

and plaintiffs provide no argument or authority showing that the result should be any different 

when these factors are combined. Indeed, even when the three criteria are present, plaintiffs’ 

analysis remains arbitrary: For example, many illegal immigrants meet all three conditions. See

 

12 Many nonimmigrants — including some J-1 visa holders, such as plaintiff Steiman — are 

exempt from payroll taxes for their first two years in the United States. See Internal Revenue 

Serv., Alien Liability for Social Security and Medicare Taxes of Foreign Teachers, Foreign 

Researchers, and Other Foreign Professionals, 

http://www.irs.gov/businesses/small/international/article/0,,id=188413,00.html (last visited Mar. 

1, 2011). In any event, unlike residence and employment, plaintiffs’ payment of taxes is not 

mentioned as a basis for relief in their complaint, so it appears that plaintiffs would claim the 

same right to engage in campaign spending even if they did not pay United States taxes. 

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Travis Loller, Many Illegal Immigrants Pay Up at Tax Time, USA TODAY, Apr. 11, 2008 

(“Social Security Administration estimates that about three-quarters of illegal workers pay taxes . 

. . .”). Thus, according to plaintiffs’ logic, if they were to overstay their visas but otherwise 

continue their activities here, they would become illegal immigrants yet remain entitled to spend 

money on American elections. There is no basis for any interpretation of the First Amendment 

that would lead to this bizarre result. 

In sum, the troubling evidentiary record of foreign activity Congress developed in the 

course of carefully and repeatedly revising section 441e “demonstrate[s] that the recited harms 

are real, not merely conjectural, and that the regulation [does] in fact alleviate these harms in a 

direct and material way.” Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622, 664 (1994). 

B. Section 441e Is Closely Drawn and Narrowly Tailored Not to Apply to 

Aliens Who Have Permanent Ties to the United States, and Not to Apply 

to Issue Speech 

Even if Congress were required to narrowly tailor legislation that distinguishes between 

citizens and noncitizens (which it is not, see supra pp. 2-22), section 441e would amply satisfy 

that requirement. Two significant tailoring limitations are built directly into the statute: Section 

441e does not apply to noncitizens who have permanent legal ties to the United States, and it 

does not limit any alien’s ability to engage in issue speech. 

First, the foreign national prohibition does not apply to noncitizens who hold permanent 

legal ties to the United States, specifically United States nationals and legal permanent residents 

(“LPRs”). See 2 U.S.C. § 441e(b)(2) (defining “foreign national”). For purposes of section 

441e, United States nationals are noncitizens who owe “permanent allegiance” to this country, 

see 8 U.S.C. § 1101(a)(22)(B), such as American Samoans, see 8 U.S.C. §§ 1408(1), 

1101(a)(29). On the basis of this allegiance and the treatment of United States nationals as 

essentially equivalent to citizens under immigration law, the Commission has long held that 

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United States nationals are not subject to section 441e. See FEC Advisory Op. 1994-28 at 2, 3 

n.3, http://saos.nictusa.com/aodocs/1994-28.pdf. Congress codified that exclusion in BCRA. 

See BCRA § 317, 116 Stat. 109. 

LPRs similarly hold permanent ties to this country: They “hav[e] been lawfully accorded 

the privilege of residing permanently in the United States as an immigrant,” 8 U.S.C. 

§ 1101(a)(20) (emphasis added), and “their lives are generally indistinguishable from those of 

United States citizens.” Demore v. Kim, 538 U.S. 510, 544 (2003) (Souter, J., concurring in part 

and dissenting in part); see also 120 Cong. Rec. 8783 (statement of Sen. Bentsen) (“[LPRs] for 

all intents and purposes are citizens of the United States except perhaps in the strictest legal 

sense of the word.”).13 Indeed, when an amendment was proposed to BCRA that would have 

prohibited contributions by LPRs, the principal sponsor of BCRA urged the amendment’s 

rejection, distinguishing campaign spending by foreign nationals from LPRs’ “being allowed to 

participate in our government.” 148 Cong. Rec. H451 (Feb. 13, 2002) (statement of Rep. Shays). 

Congress voted down the amendment on a bipartisan basis, see id. at H452 (209 Democrats and 

independents and 59 Republicans voting no), with Members noting, for example, that tens of 

thousands of legal permanent residents serve in the military and that “[m]ore than 20 percent of 

Americans who have received the Congressional Medal of Honor were legal residents.” See,

e.g., id. at H448 (statement of Rep. Mink); id. at H449 (statement of Rep. Menendez) (“This 

 

13 Amicus supporting plaintiffs argues that statutory residence classifications are “evershifting” (Amicus Br. 11) and that such classifications do not effectively distinguish aliens who 

hold permanent ties to the United States from those whose ties are merely temporary (see 

generally id. at 7-20). But the statutory definition of an LPR has not changed since 1952, see 8 

U.S.C. § 1101(a)(20), and the immigration code notes a wealth of substantive differences 

between LPRs and nonimmigrants. See generally 8 U.S.C. § 1101(a)(15)(A)-(V) (describing 

categories of nonimmigrants); see also infra pp. 35 (noting that most nonimmigrants must not 

abandon their foreign residence). Congress has thereby drawn clear distinctions in classifying 

permanent and temporarily resident aliens, and there is no constitutional error in Congress’s 

incorporation of those distinctions into section 441e. 2 U.S.C. § 441e(b)(2). 

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[amendment] is not about foreign influence. . . . [LPRs] fight for the country, they die for the 

country . . . .”). 

Plaintiffs argue that section 441e is underinclusive because it permits LPRs, who are 

noncitizens, to engage in political spending, and therefore that the statute is not narrowly tailored 

to further the government’s interest in preventing foreign influence. (Pls.’ Mem. 25.)14 But as 

the foregoing demonstrates, nonimmigrants such as plaintiffs are in a categorically different legal 

position vis-à-vis the United States than are LPRs and United States nationals. By definition, 

nonimmigrants’ authorized time in the United States is temporary, and nonimmigrant visas 

cannot be used to obtain or facilitate permanent residence: To obtain a nonimmigrant work or 

student visa, the applicant generally must “hav[e] a residence in a foreign country which he has 

no intention of abandoning,” see, e.g., 8 U.S.C. § 1101(a)(15)(J) (emphasis added), and must 

leave the country upon the expiration of her visa, see 8 C.F.R. § 214.1(a)(3)(ii). A wealth of 

legal distinctions flow from this lack of permanent ties to the United States. For example, unlike 

an LPR or a United States national, a nonimmigrant may not serve in the military, see 10 U.S.C. 

§ 504(b), or receive public benefits, see 8 U.S.C. § 1611(a). Thus, because nonimmigrants have 

no permanent legal ties to this nation, they not only have a smaller stake in American elections 

than LPRs do, see supra pp. 18-19, but they also pose a greater risk than LPRs of injecting 

distinctly foreign influence into elections, either directly or as conduits. 

In enacting legislation to prevent foreign influence, the fact that Congress was 

comfortable permitting LPRs to participate financially in campaigns does not call the statute’s 

validity into question: 

 

14 Plaintiffs’ argument that the statute is underinclusive because it does not apply to minors 

and other United States citizens is discussed infra p.42. 

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[A] regulation is not fatally underinclusive simply because an alternative 

regulation, which would restrict more speech or the speech of more

people, could be more effective. The First Amendment does not require 

the government to curtail as much speech as may conceivably serve its 

goals. . . . Because the primary purpose of underinclusiveness analysis is 

simply to ensure that the proffered state interest actually underlies the law, 

a rule is struck for underinclusiveness only if it cannot fairly be said to 

advance any genuinely substantial governmental interest [or] because it 

provides only ineffective or remote support for the asserted goals . . . . 

Blount, 61 F.3d at 946 (emphasis in original; internal quotation marks and citations omitted); see 

also McConnell, 540 U.S. at 178 (holding that statute is “not rendered unconstitutional by the 

mere fact that Congress chose not to regulate the activities of another group as stringently as it 

might have”). Because plaintiffs do not and cannot demonstrate that section 441e “provides only 

ineffective or remote support” for the government’s interest in preventing foreign influence over 

American elections, see supra pp. 25-33, their underinclusiveness argument fails. 

Furthermore, in Ruggiero the D.C. Circuit considered and rejected an argument similar to 

the one plaintiffs raise here. The Ruggiero plaintiff, who had a history of conducting unlicensed 

broadcasting (i.e., broadcast “piracy”), challenged an FCC regulation that sought to discourage 

piracy by barring individuals who had engaged in it from receiving certain FCC licenses, while 

permitting individuals who had been convicted of other crimes to apply for those licenses on a 

case-by-case basis. 317 F.3d at 243, 246. The plaintiff argued that the regulation was 

underinclusive, and therefore void under the First Amendment, because the criminals it did not 

ban posed as much risk of unlawful activity as did the singled-out pirates. The en banc court 

rejected this argument, noting that, by identifying the group that logically posed the greatest risk 

of the targeted illegal activity, the government had tailored its action appropriately and narrowly, 

not underinclusively. Id. at 246 (quoting Blount). That rationale applies with full force here, 

where Congress has tailored section 441e to reach only those noncitizens who pose the greatest 

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risk — i.e., temporarily resident nonimmigrants, such as plaintiffs, who owe no allegiance to the 

United States — and not to reach aliens who have permanent legal ties to this nation. 

The second aspect of section 441e’s narrow tailoring is that nothing in that section — or 

in any other provision of FECA — prohibits foreign nationals from speaking out on issues of 

public policy. As the Commission noted in its earlier brief (at 27), plaintiffs are entirely 

unconstrained in their ability to express and advocate for their views on “the environment, . . . 

same-sex marriage, and . . . ‘net neutrality’” (Compl. ¶ 12) and on “the health-care system . . . 

tax reductions and . . . increasing economic liberty.” (Id. ¶ 17; see also Pls.’ Statement of 

Material Facts ¶ 22 (“Dr. Steiman belongs to the American Medi[c]al Association.”).) By 

regulating only campaign-related spending, Congress has tailored section 441e to address the 

financial activity most likely to influence elections and officeholders. See McConnell, 540 U.S. 

at 138 (holding that contribution limits “have only a marginal impact on the ability of 

contributors . . . to engage in effective political speech” but limit contributors’ ability “to 

influence federal elections, federal candidates, and federal officeholders”). The enormous range 

of activity available to plaintiffs on their chosen issues — from personal speech, to creating 

advocacy websites,15 to mass television advertising16 — belies plaintiffs’ characterization of 

section 441e as a “gag law.” Cf. Ambach, 441 U.S. at 79 n.10 (“[The statute] does not inhibit 

[noncitizens] from expressing freely their political or social views or from associating with 

 

15 The Commission’s regulations provide that uncompensated individual political activity 

on the internet, such as blogging, is categorically excluded from regulation as a contribution or 

expenditure, even if includes campaign advocacy. 11 C.F.R. §§ 100.94, 100.155. 

16 During this year’s Super Bowl, which was watched by over 100 million Americans, an 

advocacy group ran a television advertisement opposing tax increases, see Americans Against 

Food Taxes, “Give Me a Break,” available at http://www.nofoodtaxes.com/ads/ (last visited Feb. 

28, 2011) — an issue that plaintiff Steiman allegedly wishes to speak out on as well (see Compl. 

¶ 17). Section 441e would not have placed any restrictions on plaintiffs’ ability to run ads of this 

kind. 

37 

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whomever they please. Nor are [noncitizens] discouraged from joining with others to advance 

particular political ends.”). 

Unable to demonstrate, or even plausibly argue, that the statute reaches too far with 

regard to issue speech (see Pls.’ Mem. 36-37 (acknowledging that “ban[ning] non-citizens from 

discussing any political matters” would be “far beyond § 441e”)), plaintiffs assert instead that it 

does not reach far enough. Specifically, plaintiffs note that section 441e does not apply to 

spending regarding state ballot measures and referenda17 — an exclusion that plaintiffs assert is 

evidence of Congress’s “unprincipled pandering to xenophobia.” (Pls.’ Mem. 25-26.) But the 

Supreme Court has distinguished spending on advocacy regarding ballot measures from 

spending on candidate elections. See Citizens Against Rent Control v. Berkeley, 454 U.S. 290, 

299 (1981). And there is no indication in the long history of section 441e that Congress was ever 

presented with evidence that foreign nationals had attempted to influence ballot measures. See 

Burson v. Freeman, 504 U.S. 191, 207 (1992) (“States adopt laws to address the problems that 

confront them. The First Amendment does not require States to regulate for problems that do not 

exist.”); Buckley, 424 U.S. at 105 (“[W]e are guided by the familiar principles that a statute is not 

invalid under the Constitution because it might have gone farther than it did . . . and that reform 

may take one step at a time, addressing itself to the phase of the problem which seems most 

acute to the legislative mind.” (internal quotation marks and citations omitted)); cf. McConnell, 

540 U.S. at 158 (rejecting underinclusiveness argument and noting that “we respect Congress’ 

decision to proceed in incremental steps in the area of campaign finance regulation”). Thus, the 

 

17 In an advisory opinion issued shortly after BCRA was enacted, the Commission 

indirectly indicated that it might interpret revised section 441e to apply to ballot initiatives. See

FEC Advisory Op. 2003-12 at 5-6, http://saos.nictusa.com/aodocs/2003-12.pdf. The 

Commission has since suggested that it does not. See FEC Advisory Op. 2005-10, 

http://saos.nictusa.com/aodocs/2005-10.pdf (finding fundraising for ballot measures to not be in 

connection with an “election” under FECA). 

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exemption of ballot measures, like all other issue speech, further demonstrates that section 441e 

is narrowly tailored to address Congress’s concern regarding proven attempts to exert foreign 

influence over American candidate elections. 

Plaintiffs propose two additional flaws in the tailoring of section 441e. They argue that 

Congress could have tailored the statute to apply only to foreign nationals who are citizens of 

countries hostile to the United States, not to citizens of Canada and other friendly nations. (Pls.’ 

Mem. 34.) Plaintiffs are free, of course, to suggest such a limitation to Congress, but the 

Constitution does not require it. See Meese v. Keene 481 U.S. 465, 469-70 (1987) (noting that 

FARA’s registration requirement was “comprehensive, applying equally to agents of friendly, 

neutral, and unfriendly governments”). To the contrary, the First Amendment does not excuse 

individuals from broadly applicable legislation simply because those individuals claim not to be 

within the core group about which the government was most concerned. See Holder, 130 S. Ct. 

at 2728-29 (upholding ban on providing, inter alia, “advice” to designated terrorist groups “even 

if the supporters meant to promote only the groups’ nonviolent ends”); Hill, 530 U.S. at 729 

(finding statutory “buffer zone” around abortion facilities narrowly tailored, even though this 

“prophylactic approach . . . will sometimes inhibit a demonstrator whose approach in fact would 

have proved harmless”); Buckley, 424 U.S. at 29-30 (upholding political contribution limit as 

closely drawn even though “most large contributors do not seek improper influence over a 

candidate’s position or an officeholder’s action”). And finally, plaintiffs argue that section 441e 

is overinclusive because it applies even in localities that permit aliens to vote. (Pls.’ Mem. 26.) 

Under this theory, every state and city in the nation would have the power to render a federal 

statute overinclusive by adopting a more permissive approach in a related area. That is not how 

the Constitution operates. See U.S. Const. art. VI, cl. 2 (Supremacy Clause). 

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C. Plaintiffs’ Remaining Arguments Mischaracterize the Government Interests 

and Statute at Issue 

Because the government has an important and compelling interest in preventing foreign 

influence over American elections and section 441e is closely drawn and narrowly tailored to 

further that interest, the statute is constitutional. The hodgepodge of caselaw plaintiffs cite in 

support of their secondary arguments to the contrary is not relevant to — and certainly cannot 

change — this outcome. 

1. The Rights to Vote and to Engage in Political Spending Are Not 

Coextensive, but Each Is a Form of Political Participation that the 

Government May Reserve for Citizens 

Plaintiffs argue at length that the Commission has improperly conflated the right to vote 

with the right to engage in campaign-related spending. Specifically, plaintiffs argue that many 

people who cannot vote in American elections nonetheless have a constitutional right to spend 

money in connection with them. (Pls.’ Mem. 21-27.) Therefore, plaintiffs argue, the 

Commission is wrong to assert that Congress’s compelling interest in denying aliens the right to 

vote is coextensive with Congress’s interest in prohibiting foreign contributions and 

expenditures. (See id.) 

Plaintiffs’ argument is a straw man: The Commission has never equated the right to vote 

with the right to spend. Indeed, the only references to voting in the Commission’s prior brief 

were in direct quotations from the legislative history of section 441e (see FEC Mem. 6, 21), and 

in support of the legal proposition that “[d]eference to the government’s broad authority over 

immigration and alienage matters is particularly apt regarding political functions.” (Id. at 15-16, 

19 (emphasis added) (citing, inter alia, cases in which exclusion of aliens from voting was 

discussed).) Even the specific portion of the Commission’s brief that plaintiffs cite as 

purportedly making this argument refers to “the nation’s processes of self government” as a 

40 

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whole, not to the specific governmental interests in voter qualifications. (Pls.’ Mem. 21 (quoting 

FEC Mem. 18).) 

This is not to say that voting and political spending are entirely unrelated. Like voting, 

making contributions to candidates and spending money to get them elected are, indeed, 

“political functions” — i.e., they are one form of democratic participation. See, e.g., Buckley, 

424 U.S. at 26-27 (analyzing contributions as part of “our system of representative democracy”). 

And as the Commission demonstrated in its prior brief, there is ample authority for the 

proposition that the government can limit democratic participation to those who have concrete 

legal ties to the United States. (See FEC Mem. 15-16; see also supra pp. 8-10.) Thus, it is well 

established that the government may deny a noncitizen the right to vote, Sugarman, 413 U.S. at 

648-49 (“[I]mplicit in many of this Court’s voting rights decisions is the notion that citizenship is 

a permissible criterion for limiting [voting] rights.”), to serve as a police officer, Foley, 435 U.S. 

at 299-300, or even to be certified as a teacher, Ambach, 441 U.S. at 80-81. Spending money to 

elect candidates to the offices that govern the nation (including all of its states and cities) may 

not be as democratically foundational as voting, but it is more inherently and directly tied to selfgovernance than is hiring police officers or certifying teachers. Political spending therefore falls 

squarely on the spectrum of democratic participation from which the Supreme Court has held 

that foreign nationals may constitutionally be excluded. See Foley, 425 U.S. at 296 (collecting 

cases holding that aliens may be excluded from functions that “lie at the heart of our political 

institutions”). Because Congress possesses the power to limit all of these forms of democratic 

participation to citizens, plaintiffs’ single-minded focus on the differences between voting and 

other rights is irrelevant. 

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Plaintiffs add stuffing to their straw man by reciting a litany of what they term 

“underinclusiveness” in the Commission’s (nonexistent) voting-spending analysis: Plaintiffs 

identify groups and entities who cannot vote but can make contributions or expenditures. (Pls.’ 

Mem. 22-23.) This is doubly unresponsive, for not only is the comparison to voting irrelevant, 

but most of the categories that plaintiffs identify do not even involve aliens. (See id. at 22 

(discussing felons and domestic corporations), 22-23 (minors), 23 (residents of the District of 

Columbia).) Minors and residents of the District of Columbia cannot vote in certain elections 

because they are, respectively, immature and reside in a district that is not a state, not because 

they lack sufficient ties to the United States. The only instances plaintiffs note that actually 

relate to activity by noncitizens under section 441e are those regarding LPRs and state ballot 

measures. But, as discussed supra pp. 35-39, these permissible activities do not render the 

statute underinclusive; rather, they are the products of Congress’s careful efforts to tailor section 

441e to close the specific opportunities and loopholes that allowed foreigners to gain influence 

over American elections in the past. 

2. Section 441e Is an Influence-Prevention Statute, Not a SpeechEqualization Statute 

Plaintiffs argue that section 441e is an impermissible “speaker-based restriction[ ]” akin 

to the ban on corporate expenditures that the Supreme Court struck down in Citizens United. 

(See Pls.’ Mem. 28-30.) It is true, of course, that section 441e applies only to foreign nationals, 

and to that extent it is speaker-based. But the infirmity of the statute struck down in Citizens 

United was not merely that it discriminated against corporate speakers, but that it did so to 

“‘equalize[e] the relative ability of individuals and groups to influence the outcome of 

elections.’” 130 S. Ct. at 904 (quoting Buckley, 424 U.S. at 48). Because “‘the concept that 

government may restrict the speech of some elements of our society in order to enhance the 

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relative voice of others is wholly foreign to the First Amendment,’” id. (quoting Buckley, 424 

U.S. at 48-49) (emphasis added), the Court held that Congress’s attempt to enhance individual 

speech at the expense of corporate speech was unconstitutional. See id. at 913. 

Section 441e does not serve an impermissible speech-equalization purpose. The statute 

does not single out foreigners because they are wealthy or because their spending would have 

“distorting effects” on the political marketplace. Cf. Austin v. Mich. Chamber of Commerce, 494 

U.S. 652, 660 (1990), overruled by Citizens United, 130 S. Ct. at 913. Rather, in the language of 

Citizens United, aliens simply are not “elements of our society” when it comes to elections. See 

supra pp. 8-10, 40-42 (discussing exclusion of aliens from democratic process). Citizens United

noted repeatedly that the expenditure ban in that case was problematic because the affected 

corporations were “associations of citizens.” E.g., 130 S. Ct. at 906-07 (“[The statute] permits 

the Government to ban the political speech of millions of associations of citizens.”); id. at 908 

(noting that statute created “disfavored associations of citizens”); see also id. at 898 (“The right 

of citizens . . . to speak . . . is a precondition to enlightened self-government and a necessary 

means to protect it.”) (emphasis added). Thus, it is not surprising that Citizens United explicitly 

declined to address the application of its holding to “the question whether the Government has a 

compelling interest in preventing foreign individuals or associations from influencing our 

Nation’s political process.” 130 S. Ct. at 911 (citing 2 U.S.C. § 441e). As the Commission has 

demonstrated at length, the government does indeed have a compelling interest in preventing 

foreign influence over “our Nation’s political process,” and section 441e is narrowly tailored to 

further that interest; nothing in Citizens United’s rejection of the speech-equalization rationale 

stands to the contrary. 

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Plaintiffs argue that the government’s anti-influence interest could nonetheless be 

furthered by a contribution limit, and that a complete ban on contributions is therefore 

unnecessary. (Pls.’ Mem. 30.) This argument conflates the government’s interest in preserving 

democracy for citizens with its distinct interest in reducing the actual and apparent corruption 

arising from large contributions. See Buckley, 424 U.S. at 26-27 (describing anticorruption 

interest). In the context of anticorruption provisions that apply to citizens — whose legitimate 

power to sway elected officials is part and parcel of representative democracy — a contribution 

limit strikes a balance between (1) limiting the ability of any single contributor to give “to secure 

a political quid pro quo from current and potential office holders,” see id. at 26, and 

(2) permitting contributors to express their support for a candidate financially and thereby 

influence his or her policies. See Citizens United, 130 S. Ct. at 910 (“[A] substantial and 

legitimate reason . . . to make a contribution . . . is that the candidate will respond by producing 

those political outcomes the supporter favors. Democracy is premised on responsiveness.”) 

(internal quotation marks omitted). In the context of foreign nationals, however, the balancing of 

legitimate and undue influence is unnecessary, for American democracy is not premised on the 

responsiveness of our government to foreign interests. Thus, just as the government can prohibit 

aliens from voting in any election, see Sugarman, 413 U.S. at 648-49, or serving in any “police 

function,” Foley, 435 U.S. at 300, or teaching any course in any public school, Ambach, 441 U.S. 

at 79-80, so must the government have the power to prohibit foreign nationals from engaging in 

any financial activity to help or hinder the election of the people who govern the nation. This is 

not an anticorruption measure; it is a basic tenet of self-governance. 

VI. CONCLUSION 

Plaintiffs conclude their brief with a sarcastic allusion to the architect of the 

September 11 attacks running for public office, thereby demonstrating insensitivity to the 

44 

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45 

security, foreign-affairs, and democratic interests at stake in this matter. The Constitution grants 

Congress and the President the authority — indeed, the duty — to protect the nation from foreign 

harm. Attempts to cause such harm take many forms, including, as history shows beyond any 

doubt, financial interference with American elections. Preventing that interference is thus a 

compelling governmental interest of the highest order — an interest that Congress has carefully 

furthered by prohibiting aliens who hold no permanent legal ties to the United States from 

bankrolling American candidates. Nothing in the Constitution prohibits this reasonable and 

tailored protection of the American system of self-government. 

 Respectfully submitted, 

Phillip Christopher Hughey 

Acting General Counsel 

chughey@fec.gov 

 

David Kolker 

Associate General Counsel 

dkolker@fec.gov 

 

Kevin Deeley 

Assistant General Counsel 

kdeeley@fec.gov 

 /s/ Adav Noti 

Adav Noti (D.C. Bar No. 490714) 

Steve N. Hajjar 

 Attorneys 

 anoti@fec.gov 

 shajjar@fec.gov 

FEDERAL ELECTION COMMISSION 

999 E Street NW 

 Washington, DC 20463 

March 1, 2011 (202) 694-1650 

Case 1:10-cv-01766-RMU -BMK -RMC Document 30 Filed 03/01/11 Page 53 of 56
UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

____________________________________ 

 ) 

BENJAMIN BLUMAN, et al., ) 

 ) 

 Plaintiffs, ) Civ. No. 10-1766 (RMU/Three-Judge Court) 

 ) 

 v. ) 

 ) STATEMENT OF GENUINE ISSUES 

FEDERAL ELECTION COMMISSION, ) 

) 

 Defendant. ) 

____________________________________) 

FEDERAL ELECTION COMMISSION’S STATEMENT OF GENUINE ISSUES 

 Pursuant to LCvR 7(h), defendant Federal Election Commission respectfully submits the 

following Statement of Genuine Issues in response to plaintiffs’ Statement of Material Facts 

(Docket No. 19). 

1-6. No response. 

7. Renewal or extension of nonimmigrant visas is not automatic. See U.S. 

Citizenship & Immigration Servs., How Do I Extend My Nonimmigrant Stay in the United States, 

at 2, http://www.uscis.gov/USCIS/Resources/C1en.pdf (Aug. 2008) (“An extension of stay is not 

automatic. We will look at your situation . . . and decide whether or not to grant your 

application. If we grant it, we will also decide how long to extend your stay. We will not grant 

an extension if circumstances indicate that an extension is not warranted.”). A nonimmigrant 

must leave the United States “at the expiration of his or her authorized period of admission or 

extension.” 8 C.F.R. § 214.1(a)(3)(ii). 

8-9. No response. 

Case 1:10-cv-01766-RMU -BMK -RMC Document 30 Filed 03/01/11 Page 54 of 56
10. The strength and substance of plaintiffs’ “political views” are not material to this 

action, as section 441e does not prohibit foreign nationals from expressing such views on any 

issue. See 2 U.S.C. § 441e. 

11-20. No response. 

21. See supra ¶ 7. 

22. No response. 

23. See supra ¶ 10. 

24-28. No response. 

29. The Club for Growth does not accept donations from foreign nationals. See Club 

for Growth, Frequently Asked Questions, 

http://www.clubforgrowth.org/aboutus/?subsec=0&id=17#M10 (last visited Feb. 28, 2011) (“We 

do not accept donations from corporations, labor unions, foreign nationals, or federal 

contractors.”). 

30-31. No response. 

 Respectfully submitted, 

Phillip Christopher Hughey 

Acting General Counsel 

chughey@fec.gov 

 

David Kolker 

Associate General Counsel 

dkolker@fec.gov 

 

Kevin Deeley 

Assistant General Counsel 

kdeeley@fec.gov 

 /s/ Adav Noti 

Adav Noti (D.C. Bar No. 490714) 

Steve N. Hajjar 

 Attorneys 

 anoti@fec.gov 

2 

Case 1:10-cv-01766-RMU -BMK -RMC Document 30 Filed 03/01/11 Page 55 of 56
3 

 shajjar@fec.gov 

FEDERAL ELECTION COMMISSION 

999 E Street NW 

 Washington, DC 20463 

March 1, 2011 (202) 694-1650 

Case 1:10-cv-01766-RMU -BMK -RMC Document 30 Filed 03/01/11 Page 56 of 56