No. 11-275

In the Supreme Court of the United States

BENJAMIN BLUMAN, ET AL., APPELLANTS

v.

FEDERAL ELECTION COMMISSION

ON APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

MOTION TO DISMISS OR AFFIRM

ANTHONY HERMAN

General Counsel

DAVID KOLKER

Associate General Counsel

KEVIN DEELEY

Assistant General Counsel

STEVE N. HAJJAR

ADAV NOTI

Attorneys

Federal Election Commission

Washington, D.C. 20463

DONALD B. VERRILLI, JR.

Solicitor General

Counsel of Record

MALCOLM L. STEWART

Deputy Solicitor General

WILLIAM M. JAY

Assistant to the Solicitor

General

Department of Justice

Washington, D.C. 20530-0001

SupremeCtBriefs@usdoj.gov

(202) 514-2217
QUESTION PRESENTED

Whether Congress may constitutionally prohibit

aliens who are temporarily employed in the United

States, but who have not been admitted to this country

for permanent residence, from making campaign contributions and other disbursements in connection with

elections for public office. 

(I)
TABLE OF CONTENTS

 Page

Opinion below . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Jurisdiction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Statement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28

TABLE OF AUTHORITIES

Cases:

Ambach v. Norwick, 441 U.S. 68 (1979) . . . . . . 11, 15, 26, 23

Bernal v. Fainter, 467 U.S. 216 (1984) . . . . . . . . . . . . . . 9, 11

Bridges v. California, 314 U.S. 252 (1941) . . . . . . . . . . . . . 14

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

Brown v. Entertainment Merchants Ass’n,

131 S. Ct. 2729 (2011) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

Buckley v. Valeo, 424 U.S. 1 (1976) . . . . . . . . . . 16, 17, 24, 26

Burson v. Freeman, 504 U.S. 191 (1992) . . . . . . . . . . . . . . 24

Cabell v. Chavez-Salido, 454 U.S. 432 (1981) . . . . . . . . 11, 12

Citizens Against Rent Control v. City of Berkeley,

454 U.S. 290 (1981) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

Citizens United v. FEC, 130 S. Ct. 876 (2010) . . . . . . . . . . 16

City of Ladue v. Gilleo, 512 U.S. 43 (1994) . . . . . . . . . . . . . 22

First Nat’l Bank v. Bellotti, 435 U.S. 765 (1978) . . . . . . . . 24

Foley v. Connelie, 435 U.S. 291 (1978) . . . . . . . . . . 11, 12, 15

Hampton v. Mow Sun Wong, 426 U.S. 88 (1976) . . . . . . . 13

Harisiades v. Shaughnessy, 342 U.S. 580 (1952) . . . . . . . 13

Kleindienst v. Mandel, 408 U.S. 753 (1972) . . . . . . . . . . . . 17

Kwong Hai Chew v. Colding, 344 U.S. 590 (1953) . . . . . . . 14

Mandel v. Bradley, 432 U.S. 173 (1977) . . . . . . . . . . . . . . . 11

(III)
IV

Cases—Continued: Page

McConnell v. FEC, 540 U.S. 93 (2003) ................. 4

Nyquist v. Mauclet, 432 U.S. 1 (1977) . . . . . . . . . . . . . . . . . 13

Randall v. Sorrell, 548 U.S. 230 (2006) . . . . . . . . . . . . . . . . 21

Republican Party v. White, 536 U.S. 765 (2002) . . . . . . . . 22

Sugarman v. Dougall, 413 U.S. 634 (1973) . . . . . . . . . . . . . 11

Toll v. Moreno, 458 U.S. 1 (1982) . . . . . . . . . . . . . . . . . . . . . 13

United States v. Kanchanalak, 192 F.3d 1037 (1999) .... 4

United States v. Trie, 23 F. Supp. 2d 55 (D.D.C. 1998) . . . 4

United States v. Verdugo-Urquidez, 494 U.S. 259

(1990) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14, 27

Viereck v. United States, 318 U.S. 236 (1943) ........... 2

Constitution, statutes, and regulations:

U.S. Const.:

Art. IV, § 4 (Republican Form of Government

Clause) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

Amend. I . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim

Act of July 4, 1966, Pub. L. No. 89-486, § 8(a), 80 Stat.

248 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Bipartisan Campaign Reform Act of 2002, Pub. L. No.

107-155:

116 Stat. 81 ................................... 6

116 Stat. 96 ................................... 7

 116 Stat. 113-114 ............................... 8

Federal Election Campaign Act of 1971, 2 U.S.C. 431

et seq. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 7

2 U.S.C. 431(17) ............................... 7

2 U.S.C. 434(f)(3) .............................. 7
V

Statutes and regulations—Continued: Page

2 U.S.C. 437c(b)(1) ............................. 7

2 U.S.C. 437d(a)(7) ............................. 8

2 U.S.C. 437d(a)(8) ............................. 7

2 U.S.C. 437f .................................. 8

2 U.S.C. 437g (2006 & Supp. IV 2010) ............. 8

2 U.S.C. 438(a)(8) .............................. 7

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

2 U.S.C. 441e(a)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

2 U.S.C. 441e(b)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

Federal Election Campaign Act Amendments of 1974,

Pub. L. No. 93-443, § 101(d), 88 Stat. 1267 ........... 3

Federal Election Campaign Act Amendments of 1976,

Pub. L. No. 94-283, 90 Stat. 475:

§ 112, Sec. 324, 90 Stat. 493 ...................... 4

§ 201, 90 Stat. 496 .............................. 4

Foreign Agents Registration Act of 1938, ch. 327, 

52 Stat. 631 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

§ 2, 52 Stat. 632 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

8 U.S.C. 1101(a)(13)(C) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

8 U.S.C. 1101(a)(15)(F)(i) . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

8 U.S.C. 1101(a)(15)(H)(ii)(a) . . . . . . . . . . . . . . . . . . . . . . . 23

8 U.S.C. 1101(a)(15)(H)(ii)(b) . . . . . . . . . . . . . . . . . . . . . . . 23

8 U.S.C. 1101(a)(15)(M)(i) . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

8 U.S.C. 1101(a)(15)(O)(ii)(IV) . . . . . . . . . . . . . . . . . . . . . . 23

8 U.S.C. 1101(a)(15)(J) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

8 U.S.C. 1101(a)(20) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

8 U.S.C. 1101(a)(22)(B) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
VI

Statutes and regulations—Continued: Page

8 U.S.C. 1101(a)(29) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

 8 U.S.C. 1408(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

18 U.S.C. 613 (1970) ................................. 3

8 C.F.R. 214.1(a)(3)(ii) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

11 C.F.R.:

Section 110.4(a) (1990) ............................ 7

Section 110.4(a) (1999) ........................... 4

Section 110.20 ................................... 8

42 C.F.R. 435.408 (2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

Miscellaneous:

Activities of Nondiplomatic Representatives of Foreign Principals in the United States: Hearings

Before the S. Comm. on Foreign Relations, 88th

Cong., 1st Sess. (1963) ............................ 2

Bureau of Consular Affairs, U.S. Dep’t of State,

Nonimmigrant Visa Issuances by Visa Class and

By Nationality FY 1997-2010 NIV Detail Table,

http://www.travel.state.gov/xls/FYs97-10_

NIVDetailTable.xls (last visited Nov. 13, 2011) . . . . . . 20

Bureau of Consular Affairs, U.S. Dep’t of State,

Nonimmigrant Visa Statistics,

http://www.travel.state.gov/visa/statistics/nivstats/

nivstats_4582.html (last visited Nov. 13, 2011) . . . . . . 20

Contributions and Expenditures; Prohibited Contributions, 54 Fed. Reg. 48,580-48,581 (1989) . . . . . . . . . . 20

120 Cong. Rec. 8782 (1974) ........................... 3

147 Cong. Rec. (2001): 

p. 3842 .......................................... 7
VII

Miscellaneous—Continued: Page

p. 3869 .......................................... 5

pp. 5060-5061 (2001) .............................. 7

148 Cong. Rec. 1309 (2002) . . . . . . . . . . . . . . . . . . . . . . . . 7, 20

41 Fed. Reg. 35,950 (1976) ........................... 4

71 Fed. Reg. 39,220 (2006) . . . . . . . . . . . . . . . . . . . . . . . . . . 23

H.R. 3526, 105th Cong., 2d Sess. (1998) ................ 6

H.R. 417, 106th Cong., 1st Sess. (1999) ................. 6

H.R. 2356, 107th Cong., 1st Sess. (2001) ................ 6

H.R. Rep. No. 153, 74th Cong., 1st Sess. (1935) . . . . . . 2, 19

Evan Hill, Libyans in US Allege Coercion, Al Jazeera

English (Feb. 17, 2011), http://english.aljazeera.

net/news/africa/2011/02/2011217184949502493.html . . 20

Seth Kantor, Jaworski Eyes Probing Foreign ’72

Gifts, Wash. Post, Jan. 25, 1974 .................... 3

Gerald M. Rosberg, Aliens and Equal Protection: 

Why Not the Right to Vote?, 75 Mich. L. Rev. 1092

(1977) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

S. Rep. No. 167, 105th Cong., 2d Sess. (1998) .......... 4

Chilton Williamson, American Suffrage: From Property to Democracy 1760-1860 (1960) . . . . . . . . . . . . . . . . 18
In the Supreme Court of the United States

No. 11-275

BENJAMIN BLUMAN, ET AL., APPELLANTS

v.

FEDERAL ELECTION COMMISSION

ON APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

MOTION TO DISMISS OR AFFIRM

OPINION BELOW

The opinion of the three-judge district court granting

appellee’s motion to dismiss (J.S. App. 1a-23a) is not yet

published in the Federal Supplement, but is available at

2011 WL 3443833.

JURISDICTION

The judgment of the three-judge district court was

entered on August 8, 2011. A notice of appeal was filed

on August 12, 2011, and the jurisdictional statement was

filed on September 1, 2011. The jurisdiction of this

Court is invoked under Section 403(a)(3) of the Bipartisan Campaign Reform Act of 2002, Pub. L. No. 107-155,

116 Stat. 113-114.

STATEMENT

Federal law prohibits foreign nationals from making

contributions, expenditures, or other disbursements in

(1)
2

connection with federal, state, or local candidate elections. 2 U.S.C. 441e. Section 441e is the current manifestation of Congress’s longstanding efforts to prevent

aliens from attempting to sway American elections and

governmental decisions by disbursing funds within the

United States.

1. In 1935, a congressional investigation found that

the Nazi party of Germany and other foreign organizations had paid for propaganda disseminated by “a large

number of aliens who, although they ha[d] resided in

this country for a number of years, had never made an

effort * * * to become citizens.” H.R. Rep. No. 153,

74th Cong., 1st Sess. 7 (1935) (1935 House Report). In

response, Congress enacted the Foreign Agents Registration Act of 1938 (FARA), ch. 327, 52 Stat. 631, to

“identify agents of foreign principals who might engage

in subversive acts or in spreading foreign propaganda,

and to require them to make public record of the nature

of their employment.” Viereck v. United States, 318

U.S. 236, 241 (1943). FARA required each agent of a

foreign principal to register with the government and

disclose certain information, including the principal’s

identity and the contractual terms of the agent’s representation. See FARA § 2, 52 Stat. 632.

2. FARA, however, did not limit the amounts that

agents could spend to achieve their foreign principals’

goals. In the early 1960s, an extensive series of hearings

explored the effects of such spending. See Activities of

Nondiplomatic Representatives of Foreign Principals

in the United States: Hearings Before the S. Comm. on

Foreign Relations, 88th Cong., 1st Sess. (1963). Agents

of foreign principals testified regarding their efforts to

induce policy decisions favorable to foreign governments

and businesses, including by funneling campaign contri-
3

butions from their foreign principals to Members of

Congress. See, e.g., id. at 195-212, 1575, 1627-1631. For

example, the Philippine sugar industry—which had an

interest in the United States government’s allocation of

federal sugar import quotas—contributed through the

industry’s registered agent to the campaigns of 20 Members of Congress. See id. at 195-212. In 1966, Congress

amended FARA to prohibit any person acting under the

direction or control of a foreign principal from knowingly making any contribution “in connection with an

election to any political office.” Act of July 4, 1966, Pub.

L. No. 89-486, § 8(a), 80 Stat. 248 (originally codified at

18 U.S.C. 613 (1970)). 

3. Even as amended, FARA did not prohibit foreign

principals from making contributions directly rather

than through agents. During the Watergate investigation, allegations surfaced that the Nixon campaign had

received contributions from citizens of foreign countries.

One such contribution investigated by the Watergate

special prosecutor was made by a Greek industrialist

soon after his firm was awarded a contract to supply fuel

to the U.S. Sixth Fleet. See Seth Kantor, Jaworski

Eyes Probing Foreign ’72 Gifts, Wash. Post, Jan. 25,

1974, at A9.

Congress sought to close that “giant loophole,” 120

Cong. Rec. 8782 (1974) (statement of Sen. Bentsen),

when it enacted the Federal Election Campaign Act

Amendments of 1974, Pub. L. No. 93-443, § 101(d), 88

Stat. 1267 (amending 18 U.S.C. 613 (1970)). That law

expanded FARA’s prohibition on campaign contributions by agents of foreign principals to encompass contributions by any “foreign national,” defined as any person who is not a citizen or lawful permanent resident

(LPR) of the United States. See ibid. In 1976, Con-
4

gress transferred that prohibition into the Federal Election Campaign Act of 1971 (FECA), 2 U.S.C. 431 et seq.,

and re-codified it as 2 U.S.C. 441e. See Federal Election

Campaign Act Amendments of 1976, Pub. L. No. 94-283,

sec. 324, § 112, 90 Stat. 493; § 201, 90 Stat. 496. 

4. a. During the 1995-1996 election cycle, foreign

nationals exploited the “soft money” loophole, through

which “nonfederal funds”—i.e., funds that do not comply

with FECA’s contribution limits, including foreign donations—were given to the major political parties ostensibly to finance activity only on the state and local level.

See, e.g., United States v. Trie, 23 F. Supp. 2d 55, 60-61

(D.D.C. 1998) (holding that FECA did not prohibit foreign soft-money donations);1

 see also McConnell v. FEC,

540 U.S. 93, 122-124 (2003) (describing soft money generally). The political parties spent hundreds of millions

of soft-money dollars on federal election activity, including television advertising and other support for presidential and congressional candidates, and provided softmoney contributors with preferential access to elected

officials. See id. at 123-125, 131.

In response to the controversy generated by reports

of such political fundraising and spending practices, the

Senate Committee on Governmental Affairs investigated

various aspects of how the 1996 election campaigns had

been financed, including any “[f]oreign contributions

and their effect on the American political system.”

S. Rep. No. 167, 105th Cong., 2d Sess. 11 (1998) (Thomp1 In 1999, the D.C. Circuit disapproved the holding of Trie and held

that the statute did prohibit soft-money contributions by foreign

nationals, as the Federal Election Commission (FEC) had “consistently

interpreted [Section 441e] * * * since 1976.” United States v.

Kanchanalak, 192 F.3d 1037, 1047-1050 & n.21 (1999) (citing 11 C.F.R.

110.4(a) (1999) and 41 Fed. Reg. 35,950 (1976)).
5

son Committee Report). The committee, chaired by

Senator Fred Thompson and generally known as the

“Thompson Committee,” conducted an exhaustive investigation throughout 1997, culminating in a written report of nearly 10,000 pages. See id. at v-vi. Among the

Thompson Committee’s primary findings was that foreign nationals, including several whom the Committee

believed to have acted on behalf of foreign governments,

had successfully used political contributions to purchase

access to powerful American officials. See generally id.

at 781-2710 (majority report on foreign influence), 4619-

5925 (minority report on same). Those contributions

had “allowed wealthy and well-connected foreign nationals to arrange almost unlimited access to the President

and other top U.S. policymakers.” Id. at 46. 

The Thompson Committee documented many examples of such foreign spending.2

 Its report devoted particular attention to the activities of Ted Sioeng, a foreign

national who “worked * * * on behalf of the Chinese

government” while spending “a substantial amount of

time in the United States” without becoming a permanent resident. See Thompson Committee Report 47,

5574; see also 147 Cong. Rec. 3869 (2001) (statement of

Sen. Collins) (“[Sioeng], we later discovered, was a selfdescribed agent of the Chinese government”). Sioeng

dined with the President and “gain[ed] access to high2 See, e.g.,Thompson Committee Report 4832-4834 (foreign national

who donated to Democratic National Committee and was granted meeting with President Clinton to press business interests); id. at 39, 2519,

2524-2536 (foreign national “with reputed links to organized crime who

advises the Chinese government” and “purchased access * * * to the

highest levels of our government”); id. at 4562, 4667-4668 (foreign national who “hosted the chairman of the Republican National Committee

on a yacht in Hong Kong Harbor and [later] provided $2 million in collateral for a loan used to help elect Republican candidates to office”).
6

ranking officials of both parties” as a result of his contributions to those parties, see Thompson Committee Report 37, 4567, 4601—contributions that may have been

funded by the Chinese government itself. See id. at

2505. Indeed, the Committee

found a broad array of Chinese efforts designed to

influence U.S. policies and elections through, among

other means, financing election campaigns. * * *

Among these efforts were the devising of a seeding

strategy of developing viable candidates sympathetic

to the [People’s Republic of China] for future federal

elections * * * [and] financing American elections

through covert means.

Id. at 47; see id. at 2501-2512 (discussing activities of

Chinese government). These efforts included not only

congressional elections, but “the 1996 Presidential race

and state elections as well.” Id. at 2509. The Thompson

Committee concluded that the events of the 1990s “expose[d] existing vulnerabilities in federal election law,

which, although intended to prohibit foreign money in

U.S. elections, [was] not always as clear or as strong as

required.” Id. at 4578. 

b. Responsive legislation was proposed almost immediately, see H.R. 3526, 105th Cong., 2d Sess. § 506, at

48 (1998), and reintroduced in subsequent Congresses,

see H.R. 417, 106th Cong., 1st Sess. § 506(a), at 52

(1999); H.R. 2356, 107th Cong., 1st Sess. § 303, at 41

(2001), until it was ultimately enacted as part of the Bipartisan Campaign Reform Act of 2002 (BCRA), Pub. L.

No. 107-155, 116 Stat. 81. BCRA, which comprehensively amended FECA, included several provisions to

strengthen and clarify the law governing foreign nationals’ participation in the electoral process, and propo-
7

nents of those measures referred repeatedly to the conduct described in the Thompson Committee report.3

The provision at issue here, BCRA Section 303, bars

“foreign national[s]” (but not LPRs) from disbursing

funds (A) in connection with any “Federal, State, or local

election”; (B) to any political party; or (C) to finance

independent expenditures or electioneering communications.4

 116 Stat. 96 (2 U.S.C. 441e(a)(1)(A)-(C)).

5. The Federal Election Commission (FEC or Commission) is vested with exclusive statutory authority

over the administration, interpretation, and civil enforcement of FECA and other federal campaign-finance

statutes. The Commission is empowered to “formulate

policy” with respect to FECA, 2 U.S.C. 437c(b)(1); “to

make, amend, and repeal such rules * * * as are necessary to carry out the provisions of [FECA],” 2 U.S.C.

437d(a)(8); see 2 U.S.C. 438(a)(8) and (d); to issue advisory opinions concerning the application of FECA and

the Commission’s regulations to proposed transactions

3 See 147 Cong. Rec. at 5060-5061 (statement of Sen. Thompson)

(noting during BCRA debate committee’s findings regarding foreign

contributions); id. at 3842 (statement of Sen. Specter) (same); 148 Cong.

Rec. 1309 (2002) (statement of Rep. Kirk) (same). 4 An “electioneering communication” is a television or radio communication that refers to a clearly identified federal candidate and is

broadcast in the relevant jurisdiction in the 30 days before a primary

election or 60 days before a general election. See 2 U.S.C. 434(f)(3). An

“independent expenditure” is a communication that expressly advocates

the election or defeat of a candidate and is not coordinated with any

candidate or political party. 2 U.S.C. 431(17). Since 1989, the FEC had

interpreted Section 441e as prohibiting foreign nationals from financing

independent expenditures. See Contributions and Expenditures;

Prohibited Contributions, 54 Fed. Reg. 48,580-48,581 (1989) (amending

11 C.F.R. 110.4(a) (1990)). 
8

or activities, 2 U.S.C. 437d(a)(7), 437f; and to civilly enforce FECA, 2 U.S.C. 437g (2006 & Supp. IV 2010).

6. Appellants are two foreign nationals who temporarily reside and work in the United States. J.S. App.

1a. They are neither citizens nor permanent residents

of this country. Ibid. Each appellant’s current authorization to work in the United States commenced in 2009

and is scheduled to expire in 2012. See id. at 7a. 

7. Appellants’ complaint alleged that 2 U.S.C. 441e

violates the First Amendment as applied to “foreign

nationals who lawfully reside and work in the United

States.” Compl. ¶ 1. Appellants contended that Section

441e unconstitutionally restricts their ability to (1) contribute to candidates for federal office, (2) contribute to

national political parties, (3) finance candidate advocacy

through independent organizations, (4) contribute to

candidates for state office, and (5) make independent

expenditures advocating the re-election of the President. See J.S. App. 7a. A three-judge district court was

convened pursuant to BCRA Section 403, 116 Stat. 113-

114. See 766 F. Supp. 2d 1, 3-4 (D.D.C. 2011).5

 The

Commission moved to dismiss, and appellants crossmoved for summary judgment.

8. The three-judge district court assumed arguendo

that Section 441e is subject to strict scrutiny (J.S. App.

8a-9a) and unanimously held that the statute is constitutional under that standard.

a. While acknowledging that “foreign citizens in the

United States enjoy many of the same constitutional

5 Appellants also challenged 11 C.F.R. 110.20, the Commission’s

regulation implementing Section 441e. That challenge was not cognizable by the three-judge court, see 766 F. Supp. 2d at 4, and the singlejudge district court has not issued a judgment with respect to the

regulation.
9

rights that U.S. citizens do” (J.S. App. 9a), the district

court found conclusive this Court’s repeated holdings

that the Constitution permits Congress and the States

to exclude aliens from certain aspects of civil society.

See id. at 11a-12a. The district court explained that,

under this Court’s precedents, aliens may constitutionally be barred from voting or from serving as teachers,

police officers, or jurors. Ibid. The court concluded that

what emerges from these cases is “a fairly clear line:

The government may exclude foreign citizens from activities ‘intimately related to the processes of democratic

self-government.’” Id. at 12a (quoting Bernal v.

Fainter, 467 U.S. 216, 220 (1984)).

The district court found that because “[p]olitical contributions and * * * expenditures are an integral aspect of the process by which Americans elect officials,”

the activities regulated by Section 441e constitute “part

of the overall process of democratic self-government.”

J.S. App. 13a-14a. The court observed that electionrelated spending is “probably far more” a part of the

democratic process than is serving as a teacher or in

other positions from which aliens may constitutionally

be excluded. See id. at 14a-15a. The three-judge court

accordingly found that Section 441e, like the other alienregulating statutes this Court has upheld, “serves the

compelling interest of limiting participation of nonAmericans in the activities of democratic self-government.” Id. at 17a.

b. The district court rejected appellants’ arguments

that Section 441e is insufficiently tailored to the government’s interest. See J.S. App. 16a-21a. The court noted

that the statute reaches only those aliens whose presence in this country is temporary, i.e., aliens whose permanent allegiance by definition lies outside the “national
10

community” of the United States. See id. at 19a. In

contrast, the court observed, Section 441e does not regulate noncitizens who are lawfully admitted to the United

States for permanent residence, who may serve in our

armed forces and are “more similar to citizens than they

are to temporary visitors.” Ibid. The court therefore

concluded that, by permitting permanent-resident

noncitizens to make contributions and expenditures,

while prohibiting aliens less connected to this country

from doing so, Congress had narrowly tailored Section

441e to further the government’s compelling interest in

“minimizing foreign participation in and influence over

American self-government.” Id. at 19a-20a.

ARGUMENT

The three-judge district court’s decision rests on a

straightforward application of settled legal principles.

This Court has repeatedly affirmed the power of state

governments to prohibit aliens from engaging in a wide

range of conduct that might interfere, even indirectly,

with American democratic governance. The Court has

also recognized that Congress has significantly broader

authority than do state legislatures to regulate the conduct of aliens within this country.

The long and well-documented history of attempts by

foreign nationals to exert financial influence over American elections amply demonstrates that direct electoral

spending is well within the range of alien activity that

Congress has a compelling interest in preventing. Section 441e is narrowly tailored to further that interest by

reaching only the specific categories of alien spending

that Congress has found to pose the greatest risk to

American self-government. The appeal should therefore

be dismissed for lack of a substantial federal question.
11

In the alternative, the judgment of the district court

should be affirmed.

1. The district court assumed arguendo that Section

441e is subject to strict scrutiny. The court concluded

that the law satisfies that standard of review because it

is narrowly tailored to further a compelling interest.

That conclusion was correct, and this Court need proceed no further to dismiss the appeal or affirm the judgment. See Mandel v. Bradley, 432 U.S. 173, 176 (1977).

a. “Self-government * * * begins by defining the

scope of the community of the governed and thus of the

governors as well.” Cabell v. Chavez-Salido, 454 U.S.

432, 439 (1981). The district court properly recognized

that the federal and state governments have a compelling interest in excluding foreign citizens “from activities ‘intimately related to the process of democratic selfgovernment.’” J.S. App. 12a (quoting Bernal v. Fainter,

467 U.S. 216, 220 (1984)). This Court has repeatedly upheld state restrictions that prohibit aliens from participating in such activities. Thus, the “State’s historical

power to exclude aliens from participation in its democratic political institutions” was held to justify state laws

that exclude aliens from voting or from holding high

public office. Sugarman v. Dougall, 413 U.S. 634,

648-649 (1973). When a “state function[]” is “bound up

with the operation of the State as a governmental entity,” the State has the power to “exclu[de] from those

functions * * * all persons who have not become part

of the process of self-government.” Ambach v. Norwick,

441 U.S. 68, 73-74 (1979). Accord Cabell, 454 U.S. at 439

(“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 self-definition.”); Foley v. Connelie, 435 U.S.
12

291, 296 (1978) (upholding a state statute requiring police officers to be citizens and noting that “a democratic

society is ruled by its people”).

Faithful to these precedents, the district court recognized that “the government may reserve ‘participation

in its democratic political institutions’ for citizens of this

country.” J.S. App. 12a (quoting Foley, 435 U.S. at 295).

The court observed that “the United States has a compelling interest for purposes of First Amendment analysis in limiting the participation of foreign citizens in activities of American democratic self-government, and in

thereby preventing foreign influence over the U.S. political process.” Id. at 13a. “Those limitations,” the court

explained, “are of a piece and are all ‘part of the sovereign’s obligation to preserve the basic conception of a

political community.’” Id. at 14a (quoting Foley, 435

U.S. at 296).

Appellants seek to distinguish the foregoing precedents on the ground that the aliens in those cases sought

government benefits rather than the opportunity to engage in constitutionally protected activities. See J.S. 21.

But the Fourteenth Amendment right to equal protection of the laws is as much a constitutional right as is the

First Amendment right to freedom of speech. The

Court’s rationale for applying rational-basis review in

the cases cited above, notwithstanding the general rule

that state-law distinctions based on alienage are subject

to heightened scrutiny, was that state governments

must be given a wider berth to regulate where aliens

seek access to “basic governmental processes” and the

“most essential” “aspects of democratic self-government.” Cabell, 454 U.S. at 439-440. “While not retreating from the position that [state-law] restrictions on lawfully resident aliens that primarily affect economic inter-
13

ests are subject to heightened judicial scrutiny,” the

Court “ha[s] concluded that strict scrutiny is out of place

when the restriction primarily serves a political function.” Id. at 439. The insight that has guided the

Court’s equal-protection jurisprudence in this area—i.e.,

the recognition that citizens and aliens inherently have

different relations to the political functions of government—is equally relevant to the First Amendment inquiry here.

b. For the foregoing reasons, a state law that barred

temporary-resident aliens from spending money to influence electoral campaigns would be a valid exercise of the

State’s power to protect its processes of democratic selfgovernance. The constitutionality of Section 441e is particularly clear, however, because it was enacted by Congress rather than by a state legislature. “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.” Nyquist v. Mauclet, 432

U.S. 1, 7 n.8 (1977); accord, e.g., Toll v. Moreno, 458 U.S.

1, 11 (1982); Hampton v. Mow Sun Wong, 426 U.S. 88,

95 (1976); Mathews v. Diaz, 426 U.S. 67, 84-85 (1976).

Because the States lack authority to regulate immigration as such, a state law that distinguishes between citizens and aliens requires some special justification. By

contrast, “[i]n the exercise of its broad power over naturalization and immigration, Congress regularly makes

rules [for aliens] that would be unacceptable if applied

to citizens.” Mathews, 426 U.S. at 79-80.

“[A]ny policy toward aliens is vitally and intricately

interwoven with” not only “foreign relations [and] the

war power,” but also “the maintenance of a republican

form of government” at home. Harisiades v. Shaughnessy, 342 U.S. 580, 588-589 (1952). Appellants acknowl-
14

edge “that the government may bar foreign citizens

abroad from making contributions or express-advocacy

expenditures in U.S. elections.” J.S. App. 15a; see J.S.

12. The thrust of their constitutional argument is that

their admission to this country for temporary residence

inexorably carries with it a right to engage in campaignrelated spending. But the First Amendment does not

require Congress to make an all-or-nothing choice between excluding an alien from the United States and

allowing him to participate in the fundamental operations of democratic self-government.

c. Appellants rely (J.S. 13-14) on other decisions of

this Court holding that aliens in the United States have

First Amendment rights. But that unremarkable proposition does not resolve the question presented here.

Indeed, appellants’ authority says little about the First

Amendment rights even of LPRs.

Bridges v. California, 314 U.S. 252 (1941), involved

multiple petitioners, and the Court did not discuss the

citizenship or alienage of any of them. Bridges v.

Wixon, 326 U.S. 135 (1945), involved the deportation of

a permanent legal resident engaged in non-election activity (labor organizing), and the Court set aside the

deportation on statutory grounds without considering

larger constitutional questions (except for the single

statement that “[f]reedom of speech and of press is accorded aliens residing in this country”). Id. at 148, 156-

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

involved a due-process issue, id. at 596 & n.5, and

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

involved the inapplicability of the Fourth Amendment to

an alien with “no previous significant voluntary connection with the United States,” id. at 271. None of those

decisions addressed the extent to which resident aliens
15

may participate in democratic self-governance within

this country. 

Section 441e is not, as appellants assert (J.S. 6, 17,

18, 31, 33), an invidious attack on “politically disfavored”

or “suspect” speakers. “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 self-definition.” Cabell,

454 U.S. at 439. The process of self-government necessarily requires identification of “the People” who subscribe to the constitutional order. Citizenship is a permissible criterion for making that determination.

“The distinction between citizens and aliens, though

ordinarily irrelevant to private activity, is fundamental

to the definition and government of a State.” Ambach,

441 U.S. at 75. Citizenship status, “whether by birth or

naturalization, denotes an association with the polity

which, in a democratic republic, exercises the powers of

governance.” Ibid.; see Foley, 435 U.S. at 295 (“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.”) (citation

omitted). “Aliens are by definition those outside of this

community.” Cabell, 454 U.S. at 439-440. Government

can thus exclude noncitizens from the activities of selfgovernment not because they are a “politically disfavored” minority (J.S. 18), but because noncitizens’ temporary admission gives them no right to participate in

American electoral processes.

Indeed, the distinction between citizens and nonresident aliens is starker here than in other contexts in

which this Court has upheld classifications as “political”

in nature. In Foley, the Court upheld a state-law re-
16

quirement that police officers be United States citizens,

explaining that such a rule would help to 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

this Court in Ambach upheld a state-law citizenship requirement for teachers, its ruling turned on the critical

role teachers played in “influenc[ing] the attitudes of

students toward government, the political process, and

a citizen’s social responsibilities.” 441 U.S. at 79. As the

district court correctly recognized, “spending money to

influence voters and finance campaigns is at least as

(and probably far more) closely related to democratic

self-government than serving as a probation officer or a

public schoolteacher.” J.S. App. 14a. 

d. Appellants argue that, because some persons who

are ineligible to vote (e.g., minors and corporations) have

a constitutional right to spend money in connection with

elections, aliens’ lack of voting rights cannot support the

restrictions on their campaign spending that Section

441e imposes. J.S. 24; see J.S. 33-34. But as the district

court correctly noted, domestic nonvoters, unlike resident aliens, are “members of the American political community.” J.S. App. 18a. The contributions and expenditures covered by Section 441e are integral to the democratic process, see, e.g., Buckley v. Valeo, 424 U.S. 1, 26-

27 (1976) (per curiam) (analyzing contributions as part

of “our system of representative democracy”), and such

spending therefore falls within the range of self-governing activity that the government can reserve for citizens.

For similar reasons, Section 441e does not impose an

impermissible speaker-based restriction akin to the ban

on corporate electoral expenditures that this Court

struck down in Citizens United v. FEC, 130 S. Ct. 876
17

(2010). In holding that ban invalid, the Court in Citizens

United emphasized not only that the prohibition applied

to certain speakers and not others, but that it discriminated in order to “equaliz[e] the relative ability of individuals and groups to influence the outcome of elections.” Id. at 904 (quoting Buckley, 424 U.S. at 48). The

Court rejected “[t]he concept that government may restrict the speech of some elements of our society in order to enhance the relative voice of others.” Ibid. (quoting Buckley, 424 U.S. at 48-49). The Court in Citizens

United noted repeatedly that the ban on corporate electoral spending was problematic because the affected

corporations were “associations of citizens.” E.g., id. at

906-907 (“[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.”). For that reason, the

Court declined to address in that case “whether the Government has a compelling interest in preventing foreign

individuals or associations from influencing our Nation’s

political process.” Id. at 911 (citing 2 U.S.C. 441e).6

6 Amicus Institute for Justice argues (Br. 6-8) that the government

is categorically prohibited from regulating speech on the ground that

it may affect the choices voters make. But none of the decisions it cites

for that proposition involves aliens or the “preliminary and foundational

question[s]” about sovereignty and the “definition of the American political community” (J.S. App. 9a) that are implicated by this case. Cf.

Kleindienst v. Mandel, 408 U.S. 753, 766-770 (1972) (upholding the

exclusion of an alien on ideological grounds, declining to review the Executive Branch’s plenary determination not to waive that exclusion, and

rejecting the claim of listeners that they had a First Amendment right

to have the alien admitted and hear his views). In any event, Congress

has the power to exclude aliens from American candidate elections not
18

Section 441e does not single out foreigners in order

to equalize speech, or because they are wealthy, or because the volume of their spending would distort the

political marketplace. And there is no merit to appellants’ suggestion that the logic of the district court’s

decision would allow similar restrictions to be placed on

citizens or citizen groups who are “disfavored” or

deemed “insufficiently loyal.” J.S. 31-33. Rather, both

the statute and the district court’s reasoning rest on the

absence of any lasting legal tie between temporary resident aliens and the United States. With respect to participation in the political process, the distinction between citizens and aliens is grounded in this Court’s decisions, in centuries of history,7

 and in the fundamental

significance of American citizenship. Congress has a

compelling interest in preserving that distinction.8

only because of their potentially harmful influence, but because aliens

have no legitimate role to play in the processes of American selfgovernment. 7 Although some States allowed certain noncitizens to vote in early

republican times (see J.S. 12), others required such aliens to first take

a loyalty oath. See Chilton Williamson, American Suffrage: From

Property to Democracy 1760-1860, at 96-99, 119-120 (1960). Many of

those States changed their constitutional definitions of voters from

“inhabitants” to “citizens” between 1810 and 1831, and several States

admitted to the Union during that period did likewise. See Gerald M.

Rosberg, Aliens and Equal Protection: Why Not the Right to Vote?, 75

Mich. L. Rev. 1092, 1097 (1977). 8 Appellants have manifested no intent to become citizens or

even LPRs. J.S. App. 19a. They hold nonimmigrant visas, see id. at 9a,

which generally require the recipient to “hav[e] a residence in a

foreign country which he has no intention of abandoning.”

8 U.S.C. 1101(a)(15)(J). Section 441e does not reflect any assumption

that persons in appellants’ position are “disloyal” to the United States

in the sense of bearing ill will toward this country or its govern-
19

2. Section 441e furthers the government’s compelling interest in preventing foreign subversion of the

American electoral system. Congress enacted and

amended the statute in response to specific incidents in

which foreign interests sought to manipulate the United

States government. That concrete and extensive historical record fully supports Congress’s decision to ban

campaign-related spending by temporary resident

aliens.

a. From the Nazi propaganda of the 1930s to the

direct campaign contributions of the Watergate era to

the soft-money donations of the 1990s, foreign interests

have consistently demonstrated their desire and willingness to spend money to sway American elections and

governmental decisions. As discussed above, pp. 2-6,

supra, such efforts have been undertaken by a wide variety of foreign interests, including governments, corporations, and individuals. Foreign financing has come not

only directly from overseas, but also routed through

foreign nationals in the United States.

For example, when the German Nazi party tried to

influence American politics through the dissemination of

propaganda here in the 1930s, it enlisted the aid of sympathetic aliens, as well as United States citizens. See

1935 House Report 7. Similarly, Ted Sioeng funneled

foreign money to American candidates and political parties while in the United States as a nonimmigrant. See

Thompson Committee Report 5574, 5577-5581. After

exploring such events, Members of Congress concluded

that injections of foreign money into American political

campaigns “threaten the integrity of our electoral sysment. As temporary resident aliens, however, appellants are by

definition persons who owe primary allegiance to foreign sovereigns.
20

tem, foreign policy, and national security.” Id. at 4577;

see also, e.g., 148 Cong. Rec. 1309 (2002) (statement of

Rep. Kirk). The evidentiary record of foreign nationals

trying to influence American elections via campaignrelated spending amply supports that conclusion.

b. The evidentiary record also supports Congress’s

determination that Section 441e’s restrictions remain

necessary to further the government’s compelling interest. For example, the possibility of foreign governments

financing political candidates in the United States

deeply troubled Congress and was cited repeatedly in

connection with the passage of BCRA Section 303. See

note 3, supra. Invalidating Section 441e would leave

each of the millions of foreign nationals who lawfully

enter and temporarily reside in the United States9 free

to spend unlimited sums on electoral advocacy, or to

contribute money directly to candidates, even at the behest of a foreign government hostile to the interests of

the United States. Cf. Thompson Committee Report

2509 (noting allegations that the Chinese government

had planned to “organize Chinese communities in the

U.S.” to “develop viable candidates sympathetic to the

PRC”); Evan Hill, Libyans in US Allege Coercion, Al

Jazeera English (Feb. 17, 2011), http://english.aljazeera.

net/news/africa/2011/02/2011217184949502493.html (describing Libyan government’s threat to revoke scholar9 For the three-year period spanning 2008-2010, the government

issued more than 2.4 million nonimmigrant work visas and more than

1.1 million student visas. See Bureau of Consular Affairs, U.S. Dep’t of

State, Nonimmigrant Visa Statistics, http://www.travel.state.gov/visa/

statistics/nivstats/nivstats_4582.html (last visited Nov. 13, 2011); see

also Bureau of Consular Affairs, U.S. Dep’t of State, Nonimmigrant

Visa Issuances by Visa Class and by Nationality FY 1997-2010 NIV

Detail Table, http://www.travel.state.gov/xls/FYs97-10_

NIVDetailTable.xls (last visited Nov. 13, 2011) (visas by nationality).
21

ships of Libyan students in United States if students did

not travel to Washington to support Qaddafi regime).

The problem of foreign intrusion would be magnified

in state and local elections, where campaigns are generally less expensive, and large contributions or expenditures therefore are more influential. Cf. Randall v.

Sorrell, 548 U.S. 230, 252 (2006) (plurality opinion) (examining contribution limits in comparison to cost of campaigns). Indeed, the Thompson Committee identified at

least one case in which a foreign national gave $100,000

to the elected state treasurer of California, see Thompson Committee Report 971-972, 5576-5581, 5584, an office with responsibility for the investment of billions of

dollars in pension assets.

3. Section 441e is narrowly tailored to address only

the types of spending as to which Congress had the

greatest concern and the fullest evidentiary record. To

avoid reaching other political activity, Congress built

two significant limitations into the statute. Section 441e

does not apply to noncitizens who are granted permanent legal residence in the United States, and it does not

limit any alien’s ability to engage in issue advocacy. 

a. Section 441e does not affect noncitizens who

“hav[e] been lawfully accorded the privilege of residing

permanently in the United States.” 8 U.S.C.

1101(a)(20); see 2 U.S.C. 441e(b)(2) (defining “foreign

national”).10 Appellants argue (J.S. 26-27) that Section

441e is underinclusive because it permits LPRs, who are

noncitizens, to engage in political spending. But a statute will be struck down as underinclusive only if the ex10 Section 441e also does not apply to United States nationals, i.e.,

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). 
22

emptions belie the government’s asserted justification

for the general restriction or suggest that the government’s true motive is to advantage one side of a debate.

See City of Ladue v. Gilleo, 512 U.S. 43, 51, 52-53 (1994);

Brown v. Entertainment Merchants Ass’n, 131 S. Ct.

2729, 2740 (2011); Republican Party v. White, 536 U.S.

765, 780 (2002).

That is not the case here. The exception for LPRs

allows the class of aliens with the closest and most durable ties to the United States to engage in electionrelated spending on the same terms as United States

citizens. That exception is fully consistent with Congress’s stated and compelling purpose of limiting participation in democratic self-government to persons who

are properly viewed as part of the American political

community. See McConnell, 540 U.S. at 178 (“[Statutes]

are not rendered unconstitutional by the mere fact that

Congress chose not to regulate the activities of another

group as stringently as it might have.”).

As the district court explained, “[l]awful permanent

residents have a long-term stake in the flourishing of

American society, whereas temporary resident foreign

citizens by definition have only a short-term interest in

the national community. * * * [L]awful permanent

residents share important rights and obligations with

citizens; for example, lawful permanent residents may—

and do, in large numbers—serve in the United States

military.” J.S. App. 19a. Appellants object that some

temporary residents may be allowed to renew their visas

many times, and some LPRs may lose their status or

leave. J.S. 26-27. Nevertheless, a temporary resident’s

continued presence in the United States is a matter of

grace, and he must agree to leave whenever his visa expires. 8 C.F.R. 214.1(a)(3)(ii). Indeed, as noted above,
23

most temporary residents are admitted on the express

condition that they do not plan to stay permanently. See

8 U.S.C. 1101(a)(15)(F)(i), (H)(ii)(a) and (b), (M)(i),

(O)(ii)(IV) (alien must “ha[ve] no intention of abandoning” his foreign residence to be eligible for student or

specialized work visa); note 8, supra.

11 By contrast, permanent residents are entitled to remain so long as they

obey the law. Cf. Mathews, 426 U.S. at 83 (“In short,

citizens and those who are most like citizens qualify.

Those who are less like citizens do not.”).

b. Neither Section 441e nor any other provision of

federal law prohibits foreign nationals from speaking

out on issues of public policy. The statute thus leaves

open to appellants a broad range of expressive activity,

from contributing to issue groups, to creating advocacy

websites, to funding mass television advertising. 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 whomever

they please.”). By regulating only campaign-related

spending, Congress has tailored Section 441e to address

the financial activity most likely to influence elections. 

See J.S. App. 17a (“When an expressive act is directly

targeted at influencing the outcome of an election, it is

11 For the proposition that “[m]any ‘nonpermanent’ residents are permitted to remain in the United States indefinitely” (J.S. 26 (emphasis

omitted); J.S. 4 n.1), appellants cite an inapposite provision of the

immigration laws, 8 U.S.C. 1101(a)(13)(C), which deals with when an

LPR is regarded as seeking admission to the United States again; and

42 C.F.R. 435.408 (2005), a Medicaid regulation that was repealed in

2006. 71 Fed. Reg. 39,220 (2006) (“We are removing § 435.408 * * *

because the immigration status described [therein] no longer has any

effectiveness.”). Unless they are granted extensions, appellants’

authorizations to reside and work in the United States will expire in

2012. J.S. App. 7a.
24

both speech and participation in democratic selfgovernment.”). 

Appellants argue that Section 441e is underinclusive

because it does not regulate speech in connection with

state ballot initiatives and referenda. J.S. 25-26. But

this Court has firmly distinguished the governmental

interests in safeguarding candidate elections from the

interests implicated by ballot measures, and Congress

was not foreclosed from taking that distinction into account. Cf. Citizens Against Rent Control v. City of

Berkeley, 454 U.S. 290, 299 (1981) (“Whatever may be

the state interest * * * in regulating and limiting contributions to or expenditures of a candidate * * * there

is no significant state or public interest in curtailing debate and discussion of a ballot measure.”); First Nat’l

Bank v. Bellotti, 435 U.S. 765, 788 n.26 (noting that the

“right to speak on issues of general public interest implies no comparable right in the quite different context

of participation in a political campaign for election to

public office”). 

In addition, the long history of Section 441e and its

statutory predecessors provides no indication that foreign nationals had attempted to influence state ballot

measures. This Court has repeatedly approved legislation that “take[s] one step at a time, addressing itself to

the phase of the problem which seems most acute to the

legislative mind.” Buckley, 424 U.S. at 105 (citation and

internal quotation marks omitted); see Burson v. Freeman, 504 U.S. 191, 207 (1992) (plurality opinion)

(“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.”). For

the same reasons, the fact that Section 441e leaves

aliens free to lobby (J.S. 25) and to volunteer for candi-
25

dates (Inst. for Justice Amicus Br. 13) does not render

it impermissibly underinclusive. 

c. Appellants also assert that Section 441e is overinclusive because it applies to state and local elections,

including in localities that permit aliens to vote. See J.S.

27. But Congress strengthened this restriction in response to extensive evidence that foreign nationals had

exploited the nonfederal “soft money” loophole. See pp.

4-6, supra. Such evidence amply supports Congress’s

amendment of Section 441e to further the compelling

interest in protecting American democracy from foreign

infiltration at all levels of government. Cf. U.S. Const.

Art. IV, § 4 (Republican Form of Government Clause).

As explained above, Congress’s power to act in this area

is particularly clear because Congress, unlike the States,

has broad, general authority to regulate the terms on

which aliens will be admitted to this country. See pp. 13-

14, supra. That some local governments grant noncitizens limited voting rights is irrelevant to the proper

disposition of appellants’ as-applied challenge, since appellants have not alleged a desire to spend money to

influence any local election in which they have the right

to vote.

Appellants also contend that Section 441e is overinclusive because “the Government has conceded” that the

statute prohibits foreign nationals from donating to a

domestic organization, such as the Club for Growth’s

501(c)(4) affiliate, “that engages occasionally, but not

primarily, in political activity.” J.S. 27-28; see also J.S.

10. To the contrary, Section 441e does not prohibit temporary resident aliens from donating to advocacy groups

unless (1) the group is a “political committee” with its

major purpose being campaign activity (the Club for

Growth’s 501(c)(4) entity currently is not registered as
26

such), or (2) the foreign funds are given or spent in connection with an election. See 2 U.S.C. 441e(a)(1);

Buckley, 424 U.S. at 79 (narrowly construing statutory

definition of “political committee”). Thus, by definition,

the statute applies only to donations made to electionrelated groups or for election-related purposes. 

d. Finally, appellants argue that Congress could

further its interest in reducing foreign electoral influence by implementing a less restrictive disclosure regime in lieu of Section 441e’s spending prohibition. J.S.

28-29. Congress tried that approach in 1938. See supra

p. 2 (discussing FARA). It did not work. See supra

pp. 2-6 (discussing 1950s-1990s).

4. None of the dire consequences that appellants

foresee (J.S. 34-36) is plausible or presents any reason

for the Court to review this case. Nonimmigrant aliens

remain free to speak out on issues, to seek redress of

grievances, and to spend their designated time in this

country in peace. Section 441e has never applied to

LPRs, and the court below expressly declined to decide

whether the statute could permissibly be extended to

that category of aliens. J.S. App. 22a. There is likewise

no basis for appellants’ assertions (J.S. 30-34) that the

decision below could threaten the established rights of

citizens to spend money on electoral speech. Political

spending is “an integral aspect of the process by which

Americans elect officials to federal, state, and local government offices.” J.S. App. 13a. Congress’s constitutional authority to exclude foreign nationals from that

process (id. at 14a-15a) is not a generalized or plenary

power to regulate the electoral “influence” of American

citizens or the organizations they form. See J.S. 31, 33.

5. For the foregoing reasons, appellants cannot prevail on the merits even under the district court’s as-
27

sumption (J.S. App. 8a) that strict scrutiny applies. As

the Commission argued in the district court, however,

strict scrutiny is not appropriate here.12 That is so both

because rational-basis review applies to state-law

alienage classifications that involve sovereign functions

of government, and because Congress has substantially

broader authority than do state legislatures to regulate

the terms on which aliens will be admitted.

This Court has never held that an alien’s entry into

the United States immediately entitles him to invoke

every aspect of “the freedom of speech” that the First

Amendment guarantees to citizens. As the Court stated

in Verdugo-Urquidez, the text of the Bill of Rights “suggests that ‘the people’ protected by the Fourth Amendment, and by the First and Second Amendments, and to

whom rights and powers are reserved in the Ninth and

Tenth Amendments, refers to a class of persons who are

part of a national community or who have otherwise developed sufficient connection with this country to be

considered part of that community.” 494 U.S. at 265. To

prevail on their claims, appellants must demonstrate

that, despite the absence of any evidence that they intend to form a more permanent connection with the

United States, their three-year work visas are a sufficient basis to extend to them the full panoply of rights

guaranteed to citizens. That they cannot do.

12 See FEC Mot. to Dismiss 13-18; FEC Opp. to Pls.’ Mot. for Summ.

J. & Reply in Supp. of Mot. to Dismiss 8-18. 
28

CONCLUSION

The appeal should be dismissed for want of a substantial federal question. In the alternative, the judgment of the district court should be affirmed.

Respectfully submitted.

ANTHONY HERMAN

General Counsel

DAVID KOLKER

Associate General Counsel

KEVIN DEELEY

Assistant General Counsel

STEVE N. HAJJAR

ADAV NOTI

Attorneys

Federal Election Commission

DONALD B. VERRILLI, JR.

Solicitor General

MALCOLM L. STEWART

Deputy Solicitor General

WILLIAM M. JAY

Assistant to the Solicitor

General

NOVEMBER 2011