UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

____________________________________ 

 ) 

BENJAMIN BLUMAN, et al., ) 

 ) 

 Plaintiffs, ) Civ. No. 10-1766 (RMU) 

 ) 

 v. ) 

 ) MOTION TO DISMISS 

FEDERAL ELECTION COMMISSION, ) 

) 

 Defendant. ) 

____________________________________) 

FEDERAL ELECTION COMMISSION’S MOTION TO DISMISS 

Pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, the Federal Election 

Commission respectfully moves this Court for an order dismissing plaintiffs’ complaint for 

failure to state a claim upon which relief can be granted. Pursuant to LCvR 7, a memorandum of 

points and authorities and a proposed order accompany this motion.

 Respectfully submitted, 

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 

 /s/ Adav Noti 

Steve N. Hajjar 

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

 Attorneys 

 shajjar@fec.gov 

 anoti@fec.gov 

Case 1:10-cv-01766-RMU Document 15 Filed 12/21/10 Page 1 of 36
2 

FEDERAL ELECTION COMMISSION 

999 E Street NW 

 Washington, DC 20463 

December 21, 2010 (202) 694-1650 

Case 1:10-cv-01766-RMU Document 15 Filed 12/21/10 Page 2 of 36
TABLE OF CONTENTS 

I. BACKGROUND ...........................................................................................................1 

A. The Federal Election Commission .....................................................................1 

B. Statutory and Regulatory Background ...............................................................2 

1. Fulbright Hearings and the Foreign Agents Registration Act ...............2 

2. Watergate Investigation and the Federal Election Campaign Act .........4 

3. Thompson Committee and the Bipartisan Campaign Reform Act ........6 

C. Plaintiffs ...........................................................................................................11 

II. ARGUMENT ..............................................................................................................12 

A. Standard of Review ..........................................................................................12 

B. The Authority of the Elected Branches of the Federal Government over 

Alienage and Immigration Matters Is Subject to Rational Basis Review ........13 

C. Protecting the Nation’s Self-Government from Foreign Interference Is a 

Legitimate Governmental Purpose ..................................................................18 

D. Section 441e Rationally Relates to the Governmental Interest in Limiting 

Foreign Influence over American Elections ....................................................22 

III. CONCLUSION ...........................................................................................................28 

 

Case 1:10-cv-01766-RMU Document 15 Filed 12/21/10 Page 3 of 36
ii 

TABLE OF AUTHORITIES 

Cases Page 

Abhe & Svoboda, Inc. v. Chao, 508 F.3d 1052 (D.C. Cir. 2007) ............................................13 

Ambach v. Norwick, 441 U.S. 68 (1979) ..................................................................... 16, 18-19 

Bell Atl. Corp. v. Twombly, 127 S. Ct. 1955 (2007) ................................................................12 

Bridges v. Wixon, 326 U.S. 135 (1945) ...................................................................................27 

Broadrick v. Oklahoma, 413 U.S. 601 (1973) .........................................................................27 

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

Cabell v. Chavez-Salido, 454 U.S. 432 (1981) ....................................................... 15-16, 18-19 

Camp v. Kollen, 567 F. Supp. 2d 170 (D.D.C. 2008) ..............................................................12 

Citizens United v. FEC, 130 S. Ct. 876 (2010) ............................................................ 17-18, 25 

Foley v. Connelie, 435 U.S. 291 (1978) ................................................................ 16, 18-19, 21 

Galvan v. Press, 347 U.S. 522 (1954) .....................................................................................14 

Haig v. Agee, 453 U.S. 280 (1981) ..........................................................................................13 

Hampton v. Mow Sun Wong, 426 U.S. 88 (1976) ....................................................................14 

Harisiades v. Shaughnessy, 342 U.S. 580 (1952) .............................................................. 13-14 

Johnson v. Eisentrager, 339 U.S. 763 (1950) ..........................................................................19 

Kaempe v. Myers, 367 F.3d 958 (D.C. Cir. 2004) ...................................................................13 

Kassem v. Wash. Hosp. Ctr., 513 F.3d 251 (D.C. Cir. 2008) ..................................................12 

Kleindienst v. Mandel, 408 U.S. 753 (1972)............................................................................14 

Mathews v. Diaz, 426 U.S. 67 (1976) .......................................................................... 14-15, 20 

McConnell v. FEC, 540 U.S. 93 (2003) ..................................................................... 6-7, 10, 22 

Moving Phones P’ship v. FCC, 998 F.2d 1051 (D.C. Cir. 1993) ................................ 15-17, 22 

Plyler v. Doe, 457 U.S. 202 (1982) ..........................................................................................14 

Randall v. Sorrell, 548 U.S. 230 (2006) ..................................................................................23 

Case 1:10-cv-01766-RMU Document 15 Filed 12/21/10 Page 4 of 36
iii 

Schneider v. Kissinger, 412 F.3d 190 (D.C. Cir. 2005) ...........................................................13 

Schooner Exch. v. McFaddon, 11 U.S. (7 Cranch) 116 (1812) ......................................... 19-20 

Sugarman v. Dougall, 413 U.S. 634 (1973) ...................................................................... 15-16 

United States v. Curtiss-Wright Export Corp., 299 U.S. 304 (1936) ................................13, 19 

United States v. Kanchanalak, 192 F.3d 1037 (D.C. Cir. 1999) .........................................6, 24 

United States v. Trie, 23 F. Supp. 2d 55 (D.D.C. 1998) ........................................................6, 9 

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

Zweibon v. Mitchell, 516 F.2d 594 (D.C. Cir. 1975) ...............................................................20 

Statutes and Regulations 

Amendments to Fed. Election Campaign Act of 1971, Pub. L. No. 94-283, 

90 Stat. 475 (1976) ...............................................................................................................5 

Bipartisan Campaign Reform Act of 2002 (“BCRA”), Pub. L. No. 107-155, 116 Stat. 81 ......9 

 BCRA § 303 .................................................................................................................10, 23 

 BCRA § 308 .......................................................................................................................10 

 BCRA § 314(b)(2)(A) ........................................................................................................10

 BCRA § 317 .......................................................................................................................10 

 BCRA § 403 .................................................................................................................12, 22 

FECA Amendments of 1974, Pub. L. No. 93-443, 88 Stat. 1262 ..............................................5 

Federal Election Campaign Act of 1971 (“FECA”), 2 U.S.C. §§ 431-457 ...............................1 

2 U.S.C. § 431(17) .............................................................................................................10 

2 U.S.C. § 434(f)(3) ...........................................................................................................10 

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

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

2 U.S.C. § 437d(a)(8) ...........................................................................................................1 

2 U.S.C. § 437f ....................................................................................................................2 

2 U.S.C. § 437g ....................................................................................................................2 

Case 1:10-cv-01766-RMU Document 15 Filed 12/21/10 Page 5 of 36
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2 U.S.C. § 438(a)(8) .............................................................................................................1 

2 U.S.C. § 441b(a) .............................................................................................................25 

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

2 U.S.C. § 441e(a)(1)(A) ...................................................................................................23 

2 U.S.C. § 441e(b)(1) .........................................................................................................25 

Foreign Agents Registration Act of 1938 (“FARA”), Pub. L. No. 75-593, 

52 Stat. 631 (1939) ........................................................................................................... 2-3 

Pub. L. No. 89-486, 80 Stat. 248 (1966) ................................................................................ 3-4 

5 U.S.C. § 7323(b)(1) ..............................................................................................................27 

8 U.S.C. § 1101(a)(15) ...............................................................................................................5 

8 U.S.C. § 1101(a)(20) ...............................................................................................................5 

8 U.S.C. § 1101(a)(22)(B) .......................................................................................................10 

8 U.S.C. § 1101(a)(29) .............................................................................................................10 

8 U.S.C. § 1408(1) ...................................................................................................................10 

8 U.S.C. § 1448(a) ...................................................................................................................20 

8 U.S.C. § 1611(a) .....................................................................................................................5 

10 U.S.C. § 504(b) .....................................................................................................................5 

12 U.S.C. § 72 ..........................................................................................................................20 

12 U.S.C. § 619 ........................................................................................................................20 

18 U.S.C. § 1391(c) .................................................................................................................25 

22 U.S.C. § 611(b)(3) ..............................................................................................................25 

28 U.S.C. § 1865(b)(1) ............................................................................................................20 

46 U.S.C. § 1171(a) .................................................................................................................20 

8 C.F.R. § 214.1(a)(3)(ii) ...........................................................................................................5 

11 C.F.R. § 110.4 .......................................................................................................................5 

11 C.F.R. § 110.4(a)......................................................................................................... 5-6, 11 

Case 1:10-cv-01766-RMU Document 15 Filed 12/21/10 Page 6 of 36
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11 C.F.R. § 110.20 .............................................................................................................11, 22 

Congressional Documents 

111 Cong. Rec. 6984-85 (Apr. 5, 1965) ..............................................................................3, 20 

120 Cong. Rec. 8782-84 (Mar. 28, 1974) ........................................................................ 4-6, 21 

143 Cong. Rec. S2058 (Mar. 10, 1997) .....................................................................................7 

147 Cong. Rec. S2423 (Mar. 19, 2001) .............................................................................10, 21 

147 Cong. Rec. S2449 (Mar. 19, 2001) ...............................................................................8, 10 

147 Cong. Rec. S2774 (Mar. 22, 2001) .....................................................................................6 

147 Cong. Rec. S3127 (Mar. 29, 2001) ...................................................................................10 

148 Cong. Rec. H355 (Feb. 13, 2002) ...............................................................................10, 21 

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

Hearings Before the Senate Comm. on Foreign Relations, 88th Cong. (1963) 

(“Fulbright Hearings”) .........................................................................................................3 

H.R. Rep. No. 74-153 (1935) .....................................................................................................2 

S. Rep. No. 105-167 (1998) .................................................................................. 7-9, 22-24, 26 

Other Authorities 

Calif. State Treasurer, Responsibilities and Functions, 

http://www.treasurer.ca.gov/inside/functions.asp ..............................................................24 

FEC Advisory Op. 1987-25, 1987 WL 61721 ...........................................................................6 

FEC, Contribution Limitations and Prohibitions, 67 Fed. Reg. 69,928 (Nov. 19, 2002) .......11 

FEC, Contributions and Expenditures; Prohibited Contributions, 54 Fed. Reg. 48,580 

(Nov. 24, 1989) ....................................................................................................................5 

FEC, Detailed Files about Candidates, Parties, and Other Committees, 

http://www.fec.gov/finance/disclosure/ftpdet.shtml#a2009_2010 ....................................17 

Fed. R. Civ. P. 12(b)(6)............................................................................................................12 

Fortune, Global 500, 

http://money.cnn.com/magazines/fortune/global500/2010/full_list/index.html ................26 

Jaworski Studies ’72 Foreign Gifts, N.Y. Times, Jan. 25, 1974 ...............................................4 

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Seth Kantor, Jaworski Eyes Probing Foreign ’72 Gifts, Wash. Post, Jan. 25, 1974 .................4

Morton Mintz, Hill Action Asked on Overseas Gifts, Wash. Post, May 25, 1973 .....................4 

Morton Mintz, Winners Still Get Money: $10 Million Given Nixon After Oct. 26, 

Wash. Post, Feb. 4, 1973......................................................................................................4

Nat’l Conf. of State Legislatures, Prohibited Donors, 

http://www.ncsl.org/Default.aspx?TabId=16557...............................................................24 

Or. Sec’y of State, Candidate ‘Quick Guide’ on Campaign Finance Reporting in Oregon, 

http://www.oregonvotes.org/publications/candidatequickguide.html ...............................24

Rotten Campaign Finance, Roanoke Times & World News, Oct. 30, 1996, available at

1996 WLNR 1221190 ..........................................................................................................7 

Travel.State.Gov, Class of Nonimmigrants Issued Visas, 

http://www.travel.state.gov/pdf/MultiYearTableXVI.pdf .................................................25 

Travel.State.Gov, Types of Visas for Temporary Visitors, 

http://travel.state.gov/visa/temp/types/types_1286.html ...................................................25 

Travel.State.Gov, http://www.travel.state.gov/xls/FYs97-09_NIVDetailTable.xls ................26 

U.S. Census Bureau, Population Finder, 

http://factfinder.census.gov/servlet/SAFFPopulation ........................................................17 

U.S. Citizenship & Immigration Servs., Extension of Optional Training Program for 

Qualified Students, http://www.uscis.gov/files/article/OPT_4Apr08.pdf 

(revised April 10, 2008) .....................................................................................................25

U.S. Dep’t of State, State Sponsors of Terrorism, http://www.state.gov/s/ct/c14151.htm ......27

Va. State Bd. of Elections, Candidate Campaign Committees, 

http://www.sbe.virginia.gov/cms/Campaign_Finance/2009_Cidate_Summary_Rev10-

1-09.pdf ..............................................................................................................................24 

Case 1:10-cv-01766-RMU Document 15 Filed 12/21/10 Page 8 of 36
UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

____________________________________ 

 ) 

BENJAMIN BLUMAN, et al., ) 

 ) 

 Plaintiffs, ) Civ. No. 10-1766 (RMU) 

 ) 

 v. ) 

 ) MEMORANDUM OF POINTS 

FEDERAL ELECTION COMMISSION, ) AND AUTHORITIES 

) 

 Defendant. ) 

____________________________________) 

FEDERAL ELECTION COMMISSION’S MEMORANDUM OF POINTS AND 

AUTHORITIES IN SUPPORT OF ITS MOTION TO DISMISS 

Defendant Federal Election Commission respectfully moves the Court to dismiss this 

action pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. Because Congress is 

well within its constitutional authority to conduct foreign policy and protect American 

democracy by prohibiting foreign nationals from financing candidates and candidate advocacy in 

the United States, plaintiffs’ complaint fails to state a claim on which relief can be granted. 

I. BACKGROUND 

A. The Federal Election Commission 

The FEC is the agency of the United States government vested with statutory authority 

over the administration, interpretation, and civil enforcement of the Federal Election Campaign 

Act of 1971 (“FECA”), 2 U.S.C. §§ 431-457, 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), 438(a)(8); to issue advisory opinions concerning the 

Case 1:10-cv-01766-RMU Document 15 Filed 12/21/10 Page 9 of 36
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application of FECA or the Commission’s regulations to proposed transactions or activities, 

2 U.S.C. §§ 437d(a)(7), 437f; and to civilly enforce FECA, 2 U.S.C. § 437g. 

B. Statutory and Regulatory Background 

Foreigners have repeatedly attempted to influence the American political system, in many 

cases by or through residents of the United States. Congress has acted to rebuff such foreign 

interference, in particular by limiting foreign-national contributions and other electoral spending. 

Each time Congress took action, legislators were responding to specific incidents of foreign 

countries or individuals seeking to alter American policy. The legislative history of those 

Congressional efforts demonstrates that lawmakers believed that prohibiting foreigners living 

abroad or only temporarily residing here from financial participation in American elections was 

necessary to protect the national security of the United States. 

1. Fulbright Hearings and the Foreign Agents Registration Act 

 Before the outbreak of World War II, representatives of the Nazi party and the German 

government directly and indirectly assisted United States citizens and aliens in disseminating 

propaganda by, for example, financing newspapers and providing pamphlets. H.R. Rep. No. 74-

153, at 3-9 (1935). A House committee appointed to investigate Nazi and other propaganda 

concluded that “attempts have been made and [were] being made from abroad and in some 

instances by diplomatic and consular agents of foreign countries to influence the political 

opinions of many of our people.” Id. at 22. In response, Congress passed a law whose primary 

purpose was to identify agents of foreign nations and organizations that “might engage in 

subversive acts or in spreading foreign propaganda” and to disclose their foreign connections. 

Viereck v. United States, 318 U.S. 236, 241 (1943). The Foreign Agents Registration Act of 

1938 (“FARA”), required agents of “foreign principals,” generally defined as foreign 

Case 1:10-cv-01766-RMU Document 15 Filed 12/21/10 Page 10 of 36
3 

governments and organizations, to register with the Secretary of State before they could 

distribute material intended to influence United States foreign policy, or what the statute termed 

“propaganda.” Pub. L. No. 75-593, 52 Stat. 631 (then-codified at 22 U.S.C. § 611 et seq. 

(1939)). 

 Dedicated as it was to publicizing foreign sources of communications disseminated here, 

FARA did not prohibit campaign contributions. But by the early 1960s, reports of contributions 

to federal candidates by foreign nationals on behalf of foreign principals led to congressional 

hearings chaired by Senator William J. Fulbright. See Activities of Nondiplomatic 

Representatives of Foreign Principals in the United States: Hearings Before the Senate Comm. 

on Foreign Relations, 88th Cong. (1963) (“Fulbright Hearings”). Witnesses testified about the 

efforts of foreign governments and businesses to ensure the reelection of federal officeholders by 

funneling campaign contributions through agents in the United States. See id. Among the most 

notable examples were the contributions of unnamed members of the sugar industry in the 

Philippines — who had an interest in how United States sugar import quotas were allocated — 

through the industry’s registered agent to the campaigns of some twenty incumbent Members of 

Congress. Id. at 195-212. 

 Concerned by these revelations and seeking to limit the ability of foreigners to influence 

United States policy through campaign contributions, Senator Fulbright introduced a bill to 

amend FARA to prohibit contributions by agents of foreign principals. 111 Cong. Rec. 6984-85 

(Apr. 5, 1965). Congress enacted this bill, thereby making it unlawful for an “agent of a foreign 

principal” to knowingly make or solicit any direct or indirect contribution “in connection with an 

election to any political office or in connection with any primary election, convention, or caucus 

held to select candidates for any political office.” Pub. L. No. 89-486, 80 Stat. 248 (1966). The 

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4 

1966 amendments to FARA defined an “agent of a foreign principal” as, inter alia, any person 

under the control or direction of a foreign principal. Id. at 249 (then-codified at 18 U.S.C. § 613 

(1967)). 

 2. Watergate Investigation and the Federal Election Campaign Act 

 Foreign interests quickly discovered another way to attempt to influence American policy 

through campaign contributions. The prohibition against contributions by agents of foreign 

nationals contained a significant loophole: Though it prohibited persons from making 

contributions on behalf of foreign principals, FARA did not prohibit contributions directly from 

foreign nationals. This loophole would prove to play a significant role in the events that led to 

the Watergate investigation. Although overshadowed by the scandal’s other revelations, 

allegations surfaced indicating that the Nixon campaign had received contributions from citizens 

of foreign countries, including Canada and Uruguay, and from various sources in Greece. See, 

e.g., Morton Mintz, Hill Action Asked on Overseas Gifts, Wash. Post, May 25, 1973, at A29; 

Morton Mintz, Winners Still Get Money: $10 Million Given Nixon After Oct. 26, Wash. Post, 

Feb. 4, 1973, at A1. One such contribution, investigated by the Watergate special prosecutor, 

was made to the Nixon campaign by a Greek industrialist soon after his firm was awarded a 

contract to supply fuel to the U.S. Sixth Fleet. See, e.g., Jaworski Studies ’72 Foreign Gifts, 

N.Y. Times, Jan. 25, 1974, at 16; Seth Kantor, Jaworski Eyes Probing Foreign ’72 Gifts, Wash. 

Post, Jan. 25, 1974, at A9. 

In the wake of Watergate, Congress sought to amend FECA to address the loopholes 

exploited during the 1972 presidential campaign, including the loophole allowing contributions 

by foreign nationals. “[A]ll of us have heard the stories . . . in recent months,” Senator Bentsen 

explained in 1974, “of the enormous amounts of money contributed in the last political campaign 

Case 1:10-cv-01766-RMU Document 15 Filed 12/21/10 Page 12 of 36
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by foreign nationals. We have heard of the hundreds of thousands of dollars sloshing around 

from one country to another, going through foreign banks, being laundered through foreign 

banks; and we have heard allegations of concessions being made by the Government to foreign 

contributors.” 120 Cong. Rec. 8782 (Mar. 28, 1974). Noting that the prohibition against 

contributions by agents of foreign nationals “left a giant loophole for contributions to be made by 

foreign individuals,” id., Senator Bentsen introduced an amendment to prohibit contributions by 

foreign nationals themselves. 

 Enacted as part of amendments to FECA in 1974, Senator Bentsen’s amendment 

prohibited foreign nationals from making contributions in connection with federal, state, or local 

elections. FECA Amendments of 1974, Pub. L. No. 93-443, 88 Stat. 1263, 1267.1

 The 

prohibition defined foreign national as a foreign principal or as an individual who is not a citizen 

or permanent resident of the United States.2 Id. Senator Bentsen minced no words explaining 

the purpose of the prohibition: “[C]ontributions by foreigners are wrong and they have no place 

 

1

 In 1976, Congress moved the foreign national prohibition from Title 18 to FECA, 

codifying it at 2 U.S.C. § 441e. Amendments to Fed. Election Campaign Act of 1971, Pub. L. 

No. 94-283, 90 Stat. 475, 486, 493, 496 (1976). The following year, the Commission 

promulgated a regulation implementing the new FECA provision. 11 C.F.R. § 110.4 (1978). In 

1989, the Commission amended its foreign national regulation in 11 C.F.R. § 110.4(a) to 

expressly prohibit foreign nationals from making expenditures of any kind. FEC, Contributions 

and Expenditures; Prohibited Contributions, 54 Fed. Reg. 48,580-81 (Nov. 24, 1989). 

2

 As explained by Senator Bentsen, permanent residents are treated the same as citizens 

under section 441e: The “privilege to contribute ought to be limited to U.S. citizens and to those 

who have indicated their intention to live here, are here legally, and are permanent residents.” 

120 Cong. Rec. 8784. Permanent residents “for all intents and purposes are citizens of the 

United States except perhaps in the strictest legal sense of the word.” Id. at 8783. Lawful 

permanent residents “hav[e] been lawfully accorded the privilege of residing permanently in the 

United States as an immigrant.” 8 U.S.C. § 1101(a)(20). In contrast, a holder of a nonimmigrant 

work or student visa generally must “hav[e] a residence in a foreign country which he has no 

intention of abandoning.” E.g., 8 U.S.C. § 1101(a)(15)(F),(H),(J),(O),(P). Unlike a legal 

permanent resident, a nonimmigrant may not serve in the military, see 10 U.S.C. § 504(b), may 

not receive public benefits, see 8 U.S.C. § 1611(a), and must leave the country upon the 

expiration of her visa, see 8 C.F.R. § 214.1(a)(3)(ii). 

Case 1:10-cv-01766-RMU Document 15 Filed 12/21/10 Page 13 of 36
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in the American political system. . . . The American political process should be left to American 

Nationals . . . .” 120 Cong. Rec. 8782-83. Senator Griffin echoed his colleague’s sentiments: 

“[B]y and large, our political process should be in the hands of those who are citizens and have 

the right to vote.” Id. at 8784. 

3. Thompson Committee and the Bipartisan Campaign Reform Act 

 Despite the 1974 FECA amendments, foreign nationals again devised methods of 

injecting substantial funds into American elections, most notably during the 1995-96 election 

cycle. During that cycle, foreign nationals exploited the “soft money” loophole, through which 

“nonfederal funds” — i.e., funds that did not comply with the source and amount limitations of 

FECA, including foreign donations — were donated to the major political parties, ostensibly on 

the grounds that these funds would be used only for state-level activity, not for federal 

campaigns. 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); see also McConnell v. FEC, 540 U.S. 93, 

122-24 (2003) (describing soft money generally).3

 Nonetheless, the political parties spent 

hundreds of millions of their soft-money dollars on federal election activity, including television 

advertising and other direct campaign advocacy for presidential and congressional candidates. 

See McConnell, 540 U.S. at 123-24, 131. 

 

3

 The Commission had interpreted section 441e as prohibiting all political donations by 

foreign nationals, including soft money donations to political parties. See 11 C.F.R. § 110.4(a) 

(1996) (providing that foreign national prohibition applied to federal, state, and local elections); 

FEC Advisory Op. 1987-25, 1987 WL 61721; see also 147 Cong. Rec. S2774 (Mar. 22, 2001) 

(statement of Sen. Thompson) (mentioning Trie and noting that “I think we all thought foreign 

soft money contributions were illegal”). In 1999, the D.C. Circuit overruled Trie and held that 

section 441e did, in fact, prohibit soft-money contributions by foreign nationals. United States v. 

Kanchanalak, 192 F.3d 1037, 1047-50 (D.C. Cir. 1999) (also noting that Commission had 

“consistently interpreted § 441e as applicable to federal, state, and local elections since 1976”). 

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In response to the widespread uproar generated by reports of such political fundraising 

practices, see, e.g., 143 Cong. Rec. S2058 (Mar. 10, 1997) (statement of Sen. Glenn) (“The 

American people are disgusted by what they see in campaign finance.”); Rotten Campaign 

Finance, Roanoke Times & World News, Oct. 30, 1996, available at 1996 WLNR 1221190 

(encouraging “public outcry” over “Buddhist temple” fundraising scandal and others), the Senate 

charged its Committee on Governmental Affairs to investigate various troubling aspects of how 

the 1996 elections had been financed, including any “[f]oreign contributions and their effect on 

the American political system.” S. Rep. No. 105-167 at 11 (1998) (internal quotation marks 

omitted). The Senate Committee — chaired by Senator Fred Thompson and often referred to as 

the “Thompson Committee” — conducted an exhaustive investigation throughout 1997, 

culminating in a written report nearly 10,000 pages long. See id.

4

Among the Thompson Committee’s primary findings was that foreign individuals — 

including several whom the Committee believed to be acting on behalf of foreign governments 

— had successfully used political contributions to purchase access to powerful American 

officials. See generally S. Rep. No. 105-167 at 781-2710 (majority report on foreign influence), 

4619-5925 (minority report on same).5

 These contributions “allowed wealthy and wellconnected foreign nationals to arrange almost unlimited access to the President and other top 

U.S. policymakers.” Id. at 46. For example, one South Korean national gave $250,000 in 

foreign corporate funds to the Democratic National Committee (“DNC”) in exchange for the 

 

4

 In the course of its investigation, the Committee “issued 427 subpoenas . . . [reviewed] 

1,500,000 pages of documents, . . . took 200 depositions and conducted over 200 witness 

interviews . . . [and] held 32 days of hearings, taking testimony from 72 witnesses.” S. Rep. No. 

105-167 at 15. 

5

 As the Supreme Court noted, “[t]he committee’s principal findings relating to Democratic 

Party fundraising were set forth in the majority’s report, while the minority report primarily 

described Republican practices. The two reports reached consensus, however, on certain central 

propositions” regarding campaign finance abuses. McConnell, 540 U.S. at 129. 

Case 1:10-cv-01766-RMU Document 15 Filed 12/21/10 Page 15 of 36
8 

opportunity to press his company’s business interests in a personal meeting with the President of 

the United States. See id. at 4832-34; see also id. at 37 (summarizing incident). In another case, 

fundraiser Charlie Trie raised a total of $645,000 for the DNC from 1994-1996 — money that 

originated largely from Ng Lap Seng, a foreign national “hotel tycoon in Macao with reputed 

links to organized crime who advises the Chinese government.” Id. at 39. Ng was rewarded for 

his contributions with ten visits to the White House between 1994 and 1996. See id. The 

purpose of these visits was not conclusively determined, see id. at 39 & n.5, but the evidence 

before the Committee established that foreign-funded contributions “purchased access for [Trie] 

and Ng to the highest levels of our government.” See id. at 2519; see also id. at 2524-36 

(describing Ng’s activities in detail). And the Republican National Committee received 

substantial foreign funds as well, such as from the “wealthy Hong Kong businessman” who 

“hosted the chairman of the Republican National Committee on a yacht in Hong Kong Harbor 

and provided $2 million in collateral for a loan used to help elect Republican candidates to 

office.” See id. at 4562, 4667-68 (noting that funds were wired from Hong Kong corporation). 

Most troubling to the Senate Committee was the case of Ted Sioeng, a foreign national 

who “worked, and perhaps still works, on behalf of the Chinese government.” See S. Rep. No. 

105-167 at 47; see also 147 Cong. Rec. S2449 (Mar. 19, 2001) (statement of Sen. Collins) 

(“Sioeng, we later discovered, was a self-described agent of the Chinese government.”). Sioeng 

dined with the President twice and “gain[ed] access to high-ranking officials of both parties” as a 

result of his contributions to those parties, see S. Rep. No. 105-167 at 37, 4567, 4601 — 

contributions that may have been funded by the Chinese government itself. See id. at 2505. And 

Sioeng was not the only potential foreign agent to seek influence over elected officials through 

campaign contributions; to the contrary, the Committee found that 

Case 1:10-cv-01766-RMU Document 15 Filed 12/21/10 Page 16 of 36
9 

high-level PRC [People’s Republic of China] government officials devised 

plans to increase China’s influence over the U.S. political process . . . . 

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. . . . The Committee has identified 

specific steps taken in furtherance of . . . these plans. . . . Among these 

efforts were the devising of a seeding strategy of developing viable 

candidates sympathetic to the PRC for future federal elections . . . [and] 

financing American elections through covert means. 

Id. at 47; see also id. at 2501-12 (discussing activities of Chinese government). These efforts 

included not just congressional elections, but “the 1996 Presidential race and state elections as 

well.” Id. at 2509. “[T]he government of China may have allocated millions of dollars in 1996 

alone to achieve its objectives.” Id. 

The Committee found that these events “expose[d] existing vulnerabilities in federal 

election law, which, although intended to prohibit foreign money in United States elections, 

[was] not always as clear or as strong as required.” S. Rep. No. 105-167 at 4578. Accordingly, 

the Committee urged the rest of Congress to “rely” on the report as “a factual record . . . in 

formulating legislative proposals.” Id. at 8 (“[I]t is the expectation of the Committee that the 

facts developed by its investigation . . . will be of use . . . when [Congress] considers legislation 

to reform campaign finance laws . . . .”). 

Such legislation was proposed almost immediately, see Trie, 23 F. Supp. 2d at 60 n.7 

(noting March 1998 introduction of bill in House of Representatives), and after failing to pass 

campaign finance reform bills in its 1997-1998 and 1999-2000 sessions, Congress enacted the 

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

BCRA, which comprehensively amended FECA, included several provisions that strengthened 

and clarified the foreign national prohibition, largely in response to the conduct described in the 

Case 1:10-cv-01766-RMU Document 15 Filed 12/21/10 Page 17 of 36
10 

1998 Senate Committee report.6

 First, BCRA section 303 amended 2 U.S.C. § 441e to explicitly 

prohibit foreign nationals from disbursing funds:

• in connection with any “Federal, State, or local election”; 

• to any political party; or 

• to finance independent expenditures or electioneering communications.7

 

116 Stat. 96 (codified at 2 U.S.C. § 441e(a)(1)(A)-(C)). Second, BCRA section 308 prohibited 

foreign nationals from financing presidential inaugurations. See 116 Stat. 103-04 (codified at 36 

U.S.C. § 510(c)). Third, BCRA section 314(b)(2)(A) directed the United States Sentencing 

Commission to increase the criminal penalties for illegal conduct involving foreign 

contributions. 116 Stat. 107.8

 

6

 See 147 Cong. Rec. S3127 (Mar. 29, 2001) (statement of Sen. Thompson) (supporting 

bill and discussing committee’s finding of “a wide-ranging effort to circumvent the federal 

election laws by funneling campaign contributions, sometimes from foreign sources”); 147 

Cong. Rec. S2449 (Mar. 19, 2001) (statement of Sen. Collins) (supporting bill’s “prohibit[ing] 

foreign nationals from contributing soft money in connection with federal, state, or local 

elections” and noting that “[t]he problem with soft money was evident during the 1997 hearings 

by the Senate Committee on Governmental Affairs”); 147 Cong. Rec. S2423 (Mar. 19, 2001) 

(statement of Sen. Specter) (“Anyone who watched the Governmental Affairs hearings in 1997 

knows the alarming role of illegal foreign contributions in our 1996 campaigns.”); 148 Cong. 

Rec. H355 (Feb. 13, 2002) (statement of Rep. Kirk) (supporting bill and discussing Chinese 

nationals’ use of soft-money loophole); see also McConnell, 540 U.S. at 132 (“In BCRA, 

Congress enacted many of the [Senate] committee’s proposed reforms.”). 

7

 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). An electioneering communication is a broadcast 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). 

8

 BCRA section 317 also codified an earlier Commission finding that residents of 

American Samoa, who have non-voting representation in Congress and “owe[ ] permanent 

allegiance to the United States,” 8 U.S.C. § 1101(a)(22)(B), are not subject to the prohibition. 

116 Stat. 109 (codified at 2 U.S.C. § 441e(b)(2)) (excluding noncitizen “nationals” of the United 

States from definition of “foreign national”); see also 8 U.S.C. § 1408(1); 8 U.S.C. 

§ 1101(a)(29). 

Case 1:10-cv-01766-RMU Document 15 Filed 12/21/10 Page 18 of 36
11 

 After BCRA was enacted, the Commission promulgated a regulation to implement the 

new provisions regarding foreign nationals, moving the prohibition from 11 C.F.R. § 110.4(a) to 

11 C.F.R. § 110.20. FEC, Contribution Limitations and Prohibitions, 67 Fed. Reg. 69,928, 

69,940-46 (Nov. 19, 2002). In relevant part, the Commission’s regulation essentially tracks and 

incorporates the language of section 441e. See 11 C.F.R. § 110.20(a)(3) (defining “foreign 

national”), 110.20(b)-(c) (prohibiting foreign disbursements in connection with elections and to 

political parties), 110.20(f) (prohibiting foreign disbursements for independent expenditures). 

C. Plaintiffs 

Plaintiffs are two foreign nationals who temporarily reside and work in the United States. 

(See Compl. ¶¶ 10-11, 15.)9

 They are neither citizens nor permanent residents of the United 

States. (See id. ¶¶ 10, 15.) Each plaintiff’s current authorization to reside and work in the 

United States commenced in 2009 and is scheduled to expire in 2012. (See id.) 

Collectively, plaintiffs wish to (1) contribute to candidates for federal office, 

(2) contribute to a national political party, (3) finance candidate advocacy through an 

independent organization (i.e., the Club for Growth), (4) contribute to a candidate for state 

office, and (5) make independent expenditures advocating the re-election of the President. (See 

id. ¶¶ 13, 18.) Plaintiffs also anticipate wishing to make “similar contributions and 

expenditures” in the future. (Id. ¶¶ 14, 19) 

Plaintiffs filed this suit on October 19, 2010, alleging that 2 U.S.C. § 441e violates the 

First Amendment as applied to all foreign nationals who lawfully reside and work in the United 

States. (Compl. ¶ 1.) Plaintiffs have requested (Docket No. 2) a three-judge district court 

 

9

 Unless otherwise noted, all facts regarding plaintiffs are derived from their complaint, 

which is assumed to be true for purposes of this motion only. See infra p. 12. 

Case 1:10-cv-01766-RMU Document 15 Filed 12/21/10 Page 19 of 36
12 

pursuant to BCRA section 403, 116 Stat. at 113-14, and the Commission has opposed that 

request (Docket No. 10). 

II. ARGUMENT 

 The Constitution vests Congress and the President with plenary power over the nation’s 

foreign affairs and charges the elected branches to protect the United States against foreign 

enemies. Accordingly, any judicial review of congressional judgments regarding matters of 

foreign policy must be exceedingly deferential. Plaintiffs’ complaint does not and cannot 

provide allegations sufficient for this Court to overturn Congress’s determination that the 

protection of American democracy is best served by prohibiting temporarily resident aliens from 

underwriting American candidates and campaigns. The statutory prohibition on electoral 

financing by foreign nationals rationally relates to the governmental interest of limiting 

opportunities for those whose fundamental allegiances lie elsewhere to influence American 

elections. 

A. Standard of Review 

Dismissal of a complaint is appropriate where, accepting the complaint as true and 

drawing all reasonable inferences in the plaintiff’s favor, the complaint fails as a matter of law to 

state a claim on which relief can be granted. Fed. R. Civ. P. 12(b)(6); Bell Atl. Corp. v. 

Twombly, 550 U.S. 544, 558 (2007) (holding dismissal appropriate “when the allegations in a 

complaint, however true, could not raise a claim of entitlement to relief”); Kassem v. Wash. 

Hosp. Ctr., 513 F.3d 251, 253 (D.C. Cir. 2008) (citing Erickson v. Pardus, 551 U.S. 89, 93 

(2007)). In deciding a motion to dismiss, the court may consider the complaint itself and 

“‘matters about which the Court may take judicial notice,’” Camp v. Kollen, 567 F. Supp. 2d 

170, 172 (D.D.C. 2008) (quoting Gustave-Schmidt v. Chao, 226 F. Supp. 2d 191, 196 (D.D.C. 

Case 1:10-cv-01766-RMU Document 15 Filed 12/21/10 Page 20 of 36
13 

2002)), including public governmental records. See Abhe & Svoboda, Inc. v. Chao, 508 F.3d 

1052, 1059 (D.C. Cir. 2007); Kaempe v. Myers, 367 F.3d 958, 965 (D.C. Cir. 2004). 

B. The Authority of the Elected Branches of the Federal Government over 

Alienage and Immigration Matters Is Subject to Rational Basis Review 

“[T]he federal power over external affairs [is] in origin and essential character different 

from that over internal affairs . . . .” United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 

319 (1936). As a result, for almost as long as there has been a Constitution, courts have 

routinely deferred to the government’s broad authority to legislate over matters of foreign affairs 

and national security. “As the Supreme Court suggested in Marbury and made clear in later 

cases, ‘The conduct of the foreign relations of our Government is committed by the Constitution 

to the Executive and Legislative — the political — Departments of the Government, and the 

propriety of what may be done in the exercise of this political power is not subject to judicial 

inquiry or decision.’” Schneider v. Kissinger, 412 F.3d 190, 194 (D.C. Cir. 2005) (quoting 

Oetjen v. Cent. Leather Co., 246 U.S. 297, 302 (1918)); see also id. at 194-96 (“Absent 

precedent, there could still be no doubt that decision-making in the fields of foreign policy and 

national security is textually committed to the political branches of government.”); Haig v. Agee, 

453 U.S. 280, 292 (1981) (“Matters intimately related to foreign policy and national security are 

rarely proper subjects for judicial intervention.”). 

 Inextricably bound up with the authority of the political branches over foreign affairs and 

national security matters is the government’s power to regulate in the field of alienage and 

immigration. “[A]ny policy toward aliens is vitally and intricately interwoven with 

contemporaneous policies in regard to the conduct of foreign relations, the war power, and the 

maintenance of a republican form of government.” Harisiades v. Shaughnessy, 342 U.S. 580, 

588-89 (1952). “Such matters are so exclusively entrusted to the political branches of 

Case 1:10-cv-01766-RMU Document 15 Filed 12/21/10 Page 21 of 36
14 

government as to be largely immune from judicial inquiry or interference.” Id. at 589; see also

Mathews v. Diaz, 426 U.S. 67, 81 (1976) (“For reasons long recognized as valid, the 

responsibility for regulating the relationship between the United States and our alien visitors has 

been committed to the political branches of the Federal Government.”); Plyler v. Doe, 457 U.S. 

202, 219 n.19 (1982) (“[A]lienage classifications may be intimately related to the conduct of 

foreign policy, to the federal prerogative to control access to the United States, and to the plenary 

federal power to determine who has sufficiently manifested his allegiance to become a citizen of 

the Nation.”); Hampton v. Mow Sun Wong, 426 U.S. 88, 101 n.21 (1976) (“[T]he power over 

aliens is of a political character and therefore subject only to narrow judicial review.”). 

In the contexts of deportation and exclusion, the government’s power is thus plenary, see

Kleindienst v. Mandel, 408 U.S. 753, 766 (1972), allowing it to regulate aliens even on the basis 

of their ideology and the content of their ideas. In Harisiades, for example, the Court held that 

the First Amendment did not prevent the government from choosing to deport, pursuant to the 

Alien Registration Act of 1940, a resident alien because he had formerly been a member of the 

Communist party. 342 U.S. 580. Likewise, the First Amendment posed no bar to the 

government choosing to deport, consistent with the Internal Securities Act of 1950, another 

individual due to his former membership in the Communist party. Galvan v. Press, 347 U.S. 522 

(1954). And in Kleindienst v. Mandel, the Court held that the First Amendment rights of 

listeners in the United States did not bar the government from refusing to issue a visa to an alien 

because he espoused political views that rendered him ineligible for a visa under the Immigration 

and Nationality Act of 1952. 408 U.S. 753. 

 Even outside the context of deportation and exclusion, the Constitution permits the 

federal government to treat citizens differently from noncitizens and to draw distinctions 

Case 1:10-cv-01766-RMU Document 15 Filed 12/21/10 Page 22 of 36
15 

between classes of aliens. See Mathews, 426 U.S. at 80 (“Congress regularly makes rules that 

would be unacceptable if applied to citizens.”). “[C]lassifications based on alienage . . . are 

permissible so long as the challenged statute is not a ‘wholly irrational’ means of effectuating a 

legitimate government purpose.” Moving Phones P’ship v. FCC, 998 F.2d 1051, 1056 (D.C. Cir. 

1993) (quoting Mathews, 426 U.S. at 83). In Mathews, for example, the Court unanimously 

upheld under rational basis review the denial of Medicare benefits to certain classes of aliens. 

426 U.S. at 82-83 (holding that Congress could condition program eligibility of aliens on 

continuous residence for period of five years and admission for permanent residence). Similarly, 

in Moving Phones Partnership, the Court of Appeals for the D.C. Circuit upheld under rational 

basis review a statute that prohibited the grant of radio licenses to aliens and to corporations with 

more than a certain level of alien ownership or control. Noting that the ownership restrictions 

“reflect a long-standing determination to safeguard the United States from foreign influence in 

broadcasting,” the Court of Appeals held that the limits were rationally related to this “national 

security policy.” 998 F.2d at 1055-56 (internal quotation marks omitted). 

 Deference to the government’s broad authority over immigration and alienage matters is 

particularly apt regarding political functions. In numerous cases the Supreme Court has 

subjected state laws that exclude aliens from participating in the process of self-government to 

rational basis review. In fact, the Supreme Court has expressly noted that “strict scrutiny is out 

of place when the restriction primarily serves a political function.” Cabell v. Chavez-Salido, 454 

U.S. 432, 439 (1981). Recognizing the “[s]tate’s historical power to exclude aliens from 

participation in its democratic political institutions,” the Court in Sugarman v. Dougall held that 

states could reasonably exclude aliens from holding high public office and from voting. 413 

U.S. 634, 648-49 (1973) (“[I]mplicit in many of this Court’s voting rights decisions is the notion 

Case 1:10-cv-01766-RMU Document 15 Filed 12/21/10 Page 23 of 36
16 

that citizenship is a permissible criterion for limiting” the rights to vote or hold public office.). 

“[O]ur scrutiny,” the Court explained, “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.” Id. at 648. 

In Foley v. Connelie, the Court upheld under rational basis review a state statute requiring 

police officers to be United States citizens. 435 U.S. 291 (1978). And in Ambach v. Norwick, 

the Court similarly upheld under rational basis review a state provision that prohibited the 

certification as a public school teacher of any person not a citizen of the United States. 441 U.S. 

68 (1979). The Court explained that “some state functions are so bound up with the operation of 

the State as a governmental entity as to permit the exclusion from those functions of all persons 

who have not become part of the process of self-government.” Id. at 73-74; see also Cabell, 454 

U.S. at 439 (holding that state statute that required peace officers to be United States citizens was 

constitutional under lower level of scrutiny articulated in Sugarman). 

The Supreme Court has applied strict scrutiny, on the other hand, to the exclusion of 

aliens as a class only to “‘exclusions [which] struck at the noncitizens’ ability to exist in the 

community’ by denying them essential welfare assistance, educational benefits, or the right to 

engage in public employment or the practice of licensed professions,” i.e., those benefits 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) (alteration in original). As the Supreme 

Court has explained, “It would be inappropriate . . . to require every statutory exclusion of aliens 

to clear the high hurdle of ‘strict scrutiny,’ because to do so would obliterate all the distinctions 

between citizens and aliens, and thus depreciate the historic value of citizenship.” Foley, 435 

U.S. at 295 (internal quotation marks omitted). 

Case 1:10-cv-01766-RMU Document 15 Filed 12/21/10 Page 24 of 36
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The opportunity to make monetary contributions to candidates, unlike the ability to earn a 

living or receive emergency medical care, is “hardly a prerequisite to existence in a community.” 

See Moving Phones, 998 F.2d at 1056. Indeed, only approximately 0.3% of the population 

availed themselves of the opportunity to make federal political contributions over $200 to a 

given recipient in the 2009-2010 election cycle.10 Millions of nonimmigrant aliens have 

“exist[ed] in the communit[ies]” of this country for over forty years while enjoying many 

benefits of residence other than financial participation in American elections; Congress’s choice 

to so exclude them is thus subject to rational basis review. 

Finally, although efforts by United States citizens to influence policy through lawful 

contributions or expenditures and the subsequent election of like-minded candidates are 

permissible — see Citizens United v. FEC, 130 S. Ct. 876, 910 (2010) (“[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) — that analysis is inapplicable to foreigners’ intervention in 

the process of self-government. See infra pp. 18-28. Courts review restrictions on campaign 

expenditures by citizens under strict scrutiny and limits on campaign contributions by citizens

under intermediate scrutiny. See Buckley v. Valeo, 424 U.S. 1, 25, 44-45, 58-59 (1976) 

(concluding that while contribution ceilings at issue did not impermissibly impinge upon rights 

of “individual citizens and candidates,” independent expenditure limits unconstitutionally 

restricted “ability of candidates, citizens, and associations” to exercise their First Amendment 

 

10 See FEC, Detailed Files about Candidates, Parties, and Other Committees, 

http://www.fec.gov/finance/disclosure/ftpdet.shtml#a2009_2010 (last visited Dec. 16, 2010) 

(data revealing approximately 1 million unique contributors); U.S. Census Bureau, Population 

Finder, http://factfinder.census.gov/servlet/SAFFPopulation (last visited Dec. 21, 2010) (noting 

2009 United States population of approximately 307 million). 

Case 1:10-cv-01766-RMU Document 15 Filed 12/21/10 Page 25 of 36
18 

rights). As the Supreme Court’s cases involving aliens show, however, Congress is permitted to 

exclude foreigners from participation in self-rule where there is a rational reason for doing so. 

Indeed, Citizens United expressly disclaimed any application of its holding regarding corporate 

political expenditures to foreign nationals. See 130 S. Ct. at 911 (declining to address 

government’s interest “in preventing foreign individuals or associations from influencing our 

Nation’s political process”). Congress may prohibit noncitizens from having any influence on 

American policy through contributions or expenditures so long as its legislation withstands the 

lower level of judicial scrutiny applied to such alien exclusions. 

C. Protecting the Nation’s Self-Government from Foreign Interference Is a 

Legitimate Governmental Purpose 

 The constitutionality of prohibiting contributions and expenditures by foreign nationals 

follows inexorably from the most basic tenets of our democratic system of governance. “[A] 

democratic society is ruled by its people.” Foley, 435 U.S. at 296. The process of selfgovernment must therefore begin by identifying who “We the People” are who subscribe to the 

constitutional order and come within its protections. “Self government . . . begins by defining 

the scope of the community governed and thus of the governors as well . . . .” Cabell, 454 U.S. 

at 439. 

 The Supreme Court has repeatedly explained that citizenship vel non is a permissible 

means of determining who can directly participate in the nation’s processes of self-government. 

“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, and “[t]he 

right to govern is reserved to citizens.” Foley, 435 U.S. at 297. Thus, “[t]he 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 . . . . Aliens are by definition 

Case 1:10-cv-01766-RMU Document 15 Filed 12/21/10 Page 26 of 36
19 

those outside of this community.” Cabell, 454 U.S. at 439-40. The Court has “recognized a 

State’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 (citation and internal quotation marks omitted). “[I]t 

represents the choice, and right, of the people to be governed by their citizen peers.” Id. at 296. 

Thus, “it is clear that a State may deny aliens the right to vote, or to run for elective office, for 

these lie at the heart of our political institutions.” Id. As these cases demonstrate, courts defer to 

legislative distinctions drawn between citizens and noncitizens in the area of direct political 

participation. “Judicial incursions in this area may interfere with those aspects of democratic 

self-government that are most essential to it.” Cabell, 454 U.S. at 440. 

The concept of citizenship is, indeed, ancient. “Citizenship as a head of jurisdiction and a 

ground of protection was old when Paul invoked it in his appeal to Caesar.” Johnson v. 

Eisentrager, 339 U.S. 763, 769 (1950). In this country, it separates those the nation can presume 

to be loyal by virtue of birth or oath from those who are merely transient. Citizenship status, 

“whether by birth or naturalization, denotes an association with the polity which, in a democratic 

republic, exercises the powers of governance.” Ambach, 441 U.S. at 75; see also id. 

(“[C]itizenship represents” an “unequivocal legal bond.”)11 Id. In order for persons to become 

 

11 The concept of self-government, of course, implies “others” who are not part of the 

nation’s political community and who may not participate in the processes of governing. The 

federal government is vested with powers that do “not depend upon the affirmative grants of the 

Constitution,” Curtis-Wright, 299 U.S. at 318, which the government can exercise to protect its 

sovereignty against infringement by foreign sources. As Chief Justice Marshall long ago 

explained: 

The jurisdiction of the nation within its own territory is necessarily 

exclusive and absolute. It is susceptible of no limitation not imposed by 

itself. Any restriction upon it, deriving validity from external source, 

would imply a diminution of its sovereignty . . . . This perfect equality 

Case 1:10-cv-01766-RMU Document 15 Filed 12/21/10 Page 27 of 36
20 

citizens through naturalization, they must publicly attest to their loyalty to the Constitution and 

acknowledge their concomitant obligations to the United States. They must swear “(1) to 

support the Constitution of the United States; (2) to renounce and abjure absolutely and entirely 

all allegiance and fidelity to any foreign prince, potentate, state, or sovereignty of whom or 

which the applicant was before a subject or citizen; (3) to support and defend the Constitution 

and the laws of the United States against all enemies, foreign and domestic; [and] (4) to bear true 

faith and allegiance to the same . . . .” 8 U.S.C. § 1448(a). An alien’s “primary allegiance” is, 

conversely, to a “foreign power.” Zweibon v. Mitchell, 516 F.2d 594, 657 (D.C. Cir. 1975).12 

In light of the fundamental differences between citizens and noncitizens, Congress 

reasonably prohibited campaign contributions by foreign nationals. After Senator Fulbright’s 

committee heard testimony on the efforts of foreigners to influence American elections through 

contributions, he spoke on the Senate floor of the importance of protecting “the integrity of the 

decision-making process of our Government” and “the growing use . . . of nondiplomatic means 

to influence Government policies.” 111 Cong. Rec. 6984-85 (Apr. 5, 1965). Less than a decade 

later, after Watergate disclosures added to the public record of foreign contributions compiled by 

the Fulbright Hearings, Congress acted to ensure that neither foreign principals nor their agents, 

nor foreign nationals acting on their own, could influence American election campaigns. During 

 

and absolute independence of sovereigns . . . has been stated to be the 

attribute of every nation. 

Schooner Exch. v. McFaddon, 11 U.S. (7 Cranch) 116, 136-37 (1812). 

12 Citizenship is an essential distinction drawn in numerous federal statutes, which provide 

for disparate treatment of aliens and citizens. Mathews, 426 U.S. 67, 78 n.12. Various federal 

statutes limit the private employment of aliens, see 12 U.S.C. § 72; the investments and 

businesses of aliens, see 12 U.S.C. § 619; and the benefits available to aliens, see 46 U.S.C. 

§ 1171(a). The judicial code provides that non-United States citizens cannot serve as petit jurors. 

28 U.S.C. § 1865(b)(1). And as observed by the Mathews Court, the entirety of Title 8 of the 

United States Code is “founded on the legitimacy of distinguishing between citizens and aliens.” 

426 U.S. at 78 n.12. 

Case 1:10-cv-01766-RMU Document 15 Filed 12/21/10 Page 28 of 36
21 

debate on his amendment, Senator Bentsen explained that the purpose of the prohibition was to 

ensure the integrity of United States elections and to limit influence over them to voters and 

those allegiant to the United States: 

[W]ithout this ban American elections will continue to be influenced by 

contributions of foreign nationals. I do not think foreign nationals have any 

business in our political campaigns. They cannot vote in our elections so why 

should we allow them to finance our elections? Their loyalties lie elsewhere; they 

lie with their own countries and their own governments. . . . The American 

political process should be left to American Nationals. 

120 Cong. Rec. 8783 (Mar. 28, 1974). The views of Senators Fulbright and Bentsen regarding 

the pernicious influence of foreign money in American elections were hardly a unique product of 

the eras in which they served. During Congress’s most recent revision to the foreign national 

prohibition, supporters again explained this purpose of the Act. See 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.”); 147 Cong. Rec. S2423 (Mar. 19, 2001) (statement of Sen. Specter) (“We need to 

make it 100 percent clear that foreign nationals cannot contribute to U.S. political parties or 

candidates under any circumstances.”). 

Congress appropriately prohibits the direct political participation of foreign nationals 

whose loyalties lie elsewhere to “exclude aliens from participation in [this country’s] 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 (citation and internal quotation marks omitted). 

Case 1:10-cv-01766-RMU Document 15 Filed 12/21/10 Page 29 of 36
22 

D. Section 441e Rationally Relates to the Governmental Interest in Limiting 

Foreign Influence over American Elections13

Each time that Congress has enacted legislation limiting foreign involvement in 

American elections, it has done so against the factual backdrop of foreign interests actively 

seeking such involvement. From the Nazi propaganda of the 1930s through the influence-buying 

of the 1990s, foreign interests have consistently demonstrated that they will use their money to 

sway American elections when they can devise a way to do so. See supra pp. 2-11. Congress 

has studied these events extensively and has 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. Congress has therefore repeatedly and 

carefully refined the foreign national prohibition in response to attempts to circumvent it. This 

historical record and legislative history are real, concrete, and sufficient to show that section 

441e is not “a ‘wholly irrational’ means of effectuating a legitimate government purpose.” 

Moving Phones, 998 F.2d at 1056.14 

The scandals of the past suggest what could recur without limit if the statute were 

declared unconstitutional as to all foreign nationals who temporarily work and reside in the 

United States, as plaintiffs request. (Compl., Request for Relief ¶ 1.) For example, the 1998 

 

13 Because the challenged regulation, 11 C.F.R. § 110.20, does not differ substantively from 

section 441e, the Commission does not address the regulation separately in this brief. In any 

event, should a three-judge court be convened pursuant to BCRA section 403, it would not have 

jurisdiction to determine the constitutionality of a regulation. See BCRA § 403(a) (establishing 

procedure for “any action . . . to challenge the constitutionality of any provision of this Act or 

any amendment made by this Act”) (emphasis added); McConnell, 540 U.S. at 223 (holding that 

BCRA review provisions do not apply to challenges to regulations). 

14 Although rational basis review is the appropriate standard in this case, see supra pp. 13-

18, section 441e readily satisfies any level of scrutiny because of the important and compelling 

governmental interest in limiting foreign influence over American elections. See supra Part II.C, 

infra Part II.D. The provision is also closely drawn and narrowly tailored, for it, inter alia, does 

not apply to permanent legal residents, see supra p. 5 & n.2, and does not limit any alien’s ability 

to engage in non-candidate issue speech, see infra p. 27. 

Case 1:10-cv-01766-RMU Document 15 Filed 12/21/10 Page 30 of 36
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Senate Committee report explored in detail the lengths to which the Chinese government was 

prepared to go to buy the loyalty of American officials, including through campaign spending. 

See supra pp. 8-9. The specter of foreign governments financing political candidates in the 

United States deeply troubled Congress and was cited repeatedly in the passage of BCRA section 

303. Id. Nonetheless, if plaintiffs were to prevail in this case, even foreign nationals who work 

directly for a foreign government would be able to give money to candidates or to spend money 

advocating for or against them. Thus, a foreign intelligence agent living in Washington, D.C., 

and working in a foreign embassy — an individual paid by a foreign government to conduct 

espionage on the United States and harm American interests — would have a constitutional right

to finance attack ads against American candidates for office. A prohibition on this conduct is 

clearly rational, and the Commission is aware of no legal authority holding that the Constitution 

prohibits Congress from restricting foreign governmental agents — or other persons of nonAmerican allegiance — from infiltrating the American political system. See supra Part II.C. 

Furthermore, although most of plaintiffs’ currently planned contributions are to federal 

candidates and parties (see Compl. ¶¶ 13, 18), section 441e applies to all elections — federal, 

state, and local. 2 U.S.C. § 441e(a)(1)(A). The problem of influence-buying can be heightened 

in the state and local context, where campaigns are generally less expensive, so a large 

contribution would constitute a greater proportion of the funds needed to win office and thereby 

purchase more influence. Cf. Randall v. Sorrell, 548 U.S. 230, 252 (2006) (plurality) (examining 

contribution limits in comparison to cost of campaigns). Indeed, the 1998 Senate Committee 

report found at least one case in which a foreign national gave $100,000 to the elected treasurer 

of the state of California, see S. Rep. No. 105-167 at 971-72, 5576-81, 5584 — a substantial sum 

for any campaign, much less for most down-ballot state contests. Given the responsibilities that 

Case 1:10-cv-01766-RMU Document 15 Filed 12/21/10 Page 31 of 36
24 

many state elected officials hold — such as the investment of billions of dollars in pension 

assets15 — the incentives to buy influence over such officers is great. See id. at 1186 (noting that 

fundraiser arranged meeting between business and state treasurer, resulting in business receiving 

“bond work” from state). Providing the means for foreign agents to capitalize on that incentive 

by bankrolling candidates would end the protection that section 441e has long provided to every 

state and local government in the United States. See United States v. Kanchanalak, 192 F.3d 

1037, 1047-50 (D.C. Cir. 1999) (noting that Commission “consistently interpreted § 441e as 

applicable to federal, state, and local elections since 1976”). 

The problem of foreign influence in state and local elections is magnified by the fact that, 

apart from the nationwide prohibition of section 441e, some states place few or no additional 

restrictions on political contributions. Virginia and Oregon, for example, allow unlimited 

contributions to state candidates from any source.16 While such states have made a policy 

decision to permit large contributions by United States citizens, that in no way implies that they 

would reach the same conclusion as to foreign nationals. See Nat’l Conf. of State Legislatures, 

Prohibited Donors, http://www.ncsl.org/Default.aspx?TabId=16557 (last visited Dec. 19, 2010) 

(noting that although some states have banned foreign contributions, state prohibitions are 

“unnecessary” in light of § 441e). Yet if section 441e were struck down on constitutional 

grounds, foreign nationals would be permitted to give millions of dollars to purchase access to, 

and loyalty of, candidates in those states. 

 

15 See Calif. State Treasurer, Responsibilities and Functions, 

http://www.treasurer.ca.gov/inside/functions.asp (last visited Dec. 19, 2010). 

16 See Va. State Bd. of Elections, Candidate Campaign Committees, at 19, 

http://www.sbe.virginia.gov/cms/Campaign_Finance/2009_Cidate_Summary_Rev10-1-09.pdf 

(Oct. 1, 2009); Or. Sec’y of State, Candidate ‘Quick Guide’ on Campaign Finance Reporting in 

Oregon, http://www.oregonvotes.org/publications/candidatequickguide.html (last visited Dec. 

19, 2010). 

Case 1:10-cv-01766-RMU Document 15 Filed 12/21/10 Page 32 of 36
25 

When foreign nationals working in the United States are considered in the aggregate, the 

justification for the foreign national prohibition becomes even more apparent. In 2009 alone, the 

government issued approximately 800,000 visas under the H-, J-, L-, O-, and P-visa categories, 

each of which allows the visa-holder to work in the United States, as well as over 350,000 

student visas.17 For the three-year period spanning 2007-2009, the government issued 

approximately 2.7 million work visas and over 1 million student visas. Thus, during the course 

of an election cycle, there are millions of nonimmigrant foreign nationals who have permission 

to live and work in the United States. A concerted financial effort by even a portion of this alien 

population could generate enough money to skew many congressional, state, or local elections. 

Moreover, plaintiffs’ complaint on its face encompasses all “foreign nationals” who 

“reside” and “work” in the United States — a category that seemingly includes foreign 

corporations. See 2 U.S.C. § 441e(b)(1) (defining “foreign national” to include “foreign 

principal”); 22 U.S.C. § 611(b)(3) (defining “foreign principal” to include corporations); 

18 U.S.C. § 1391(c) (providing that, for venue purposes, “a corporation shall be deemed to reside 

in any judicial district in which it is subject to personal jurisdiction”). While all corporations are 

prohibited from contributing directly to candidates, see 2 U.S.C. § 441b(a), the Supreme Court 

has rejected the distinction between individuals and corporations in the context of independent 

campaign spending. See generally Citizens United, 130 S. Ct. 876. If this reasoning were 

 

17 Visa issuance data is available at Travel.State.Gov, Classes of Nonimmigrants Issued 

Visas, http://www.travel.state.gov/pdf/MultiYearTableXVI.pdf (last visited Dec. 19, 2010). 

Summary information regarding each type of nonimmigrant visa is available at Travel.State.Gov, 

Types of Visas for Temporary Visitors, http://travel.state.gov/visa/temp/types/types_1286.html 

(last visited Dec. 19, 2010). It is not clear from their complaint whether plaintiffs consider 

students to be “working” in the United States for purposes of plaintiffs’ prayer for relief, but, 

regardless, the student “F” visa also allows students to work in many cases. See U.S. Citizenship 

& Immigration Servs., Extension of Optional Training Program for Qualified Students, 

http://www.uscis.gov/files/article/OPT_4Apr08.pdf (revised April 10, 2008). 

Case 1:10-cv-01766-RMU Document 15 Filed 12/21/10 Page 33 of 36
26 

applied to plaintiffs’ broad request for relief for foreign nationals, it could open the door to 

millions — or even billions — of dollars of campaign advocacy by foreign corporations. Indeed, 

three of the five largest corporations in the world, with combined annual revenues of over $735 

billion, are foreign corporations that do business in the United States.18 Accordingly, all of the 

Commission’s arguments regarding the need for section 441e to protect the United States from 

the influence of foreign individuals apply a fortiori to the influence that foreign corporations 

could exert over the entire American political system. 

The foregoing concerns regarding concerted efforts by foreign nationals are not 

hypothetical. The 1998 Senate Committee noted that part of the Chinese government’s plan to 

influence American elections involved a “strategy, under which PRC officials would organize 

Chinese communities in the U.S.,” with the long-term goal of “develop[ing] viable candidates 

sympathetic to the PRC for future federal elections.” See S. Rep. No. 105-167 at 2509. In 1996, 

this strategy was limited by section 441e’s prohibition on using foreign nationals to “develop” 

candidates, at least financially. But if plaintiffs were to prevail in this lawsuit, that would 

change: With approximately 140,000 Chinese nationals granted work and student visas in 2009 -

— and roughly 340,000 total from 2007-2009 — a collection of contributions made by 

temporarily resident Chinese nationals at the direction of the Chinese government could easily 

raise sufficient funds to skew or determine outright the result of a targeted election.19 Cf. S. Rep. 

No. 105-167 at 5685 (noting congressional election in which candidate won by 898 votes after 

raising almost $150,000 in foreign funds). And this problem, of course, is in no way limited to 

 

18 See Fortune, Global 500, http://money.cnn.com/magazines/fortune/global500/2010/ 

full_list/index.html (last visited Dec. 19, 2010) (listing Royal Dutch Shell, BP, and Toyota 

Motor). 

19 Visa data by country of visa recipient is available in Microsoft Excel format at 

http://www.travel.state.gov/xls/FYs97-09_NIVDetailTable.xls (last visited Dec. 20, 2010). 

Case 1:10-cv-01766-RMU Document 15 Filed 12/21/10 Page 34 of 36
27 

China, as countries whose governments openly promote harm to the United States are wellrepresented in the pool of temporary workers and residents. For example, from 2007-2009 the 

United States issued thousands of student and work visas to citizens of Iran — a nation that has 

been formally designated a “state sponsor of terrorism” since 1984. See U.S. Dep’t of State, 

State Sponsors of Terrorism, http://www.state.gov/s/ct/c14151.htm (last visited Dec. 20, 2010). 

While the United States government may continue to welcome citizens of these countries 

for a variety of reasons, Congress must have the power to admit such persons for temporary 

work without also necessarily allowing them access to the core of American democracy. 

Temporarily resident aliens do have First Amendment rights to speak out on the issues of the 

day, Bridges v. Wixon, 326 U.S. 135, 148 (1945), and section 441e does not in any way prevent 

them from doing so. Indeed, to the extent that plaintiffs “hold strong political views on a variety 

of matters of public concern” and “wish to express and actualize those views” (Compl. ¶ 2) — 

whether it be on “the environment, . . . same-sex marriage, and . . . ‘net neutrality’” (id. ¶ 12) or 

on “the health-care system . . . tax reductions and . . . increasing economic liberty” (id. ¶ 17) — 

they may do so at will. With respect to candidate elections, however, Congress has determined, 

in the exercise of its constitutionally imposed responsibilities, that such access would pose too 

great a threat to the national security of the United States, and this Court owes deference to that 

determination.20

 

20 Federal Election Commission employees — citizens of the United States whose positions 

exist only by virtue of congressional action — are similarly prohibited by law from making 

campaign contributions to Members of Congress. 5 U.S.C. § 7323(b)(1). Such restrictions do 

not violate the First Amendment. See generally Broadrick v. Oklahoma, 413 U.S. 601 (1973) 

(upholding statute that prohibited state government employees from, inter alia, “taking part in 

the management or affairs of any political party or in any political campaign, except to exercise 

his right as a citizen privately to express his opinion and to cast his vote”) (internal quotation 

marks and brackets omitted). 

Case 1:10-cv-01766-RMU Document 15 Filed 12/21/10 Page 35 of 36
28 

Thus, given the historical record and the measured congressional response thereto, the 

foreign national prohibition is rationally related to Congress’s interest in self-government and in 

protecting American democracy from foreign threats. 

III. CONCLUSION

By the grace of Congress and the President, millions of foreign nationals temporarily 

reside and work in the United States. The ability to finance American elections, however, is a 

right held only by the citizens and others who owe permanent allegiance to this nation. In 

legislating accordingly, Congress is well within its constitutional authority to protect the security 

and democracy of the United States. The Commission thus respectfully moves this Court to 

dismiss plaintiffs’ complaint for failure to state a claim on which relief can be granted. 

 Respectfully submitted, 

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 

 /s/ Adav Noti 

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 

December 21, 2010 (202) 694-1650 

Case 1:10-cv-01766-RMU Document 15 Filed 12/21/10 Page 36 of 36