No. 11-275 

IN THE

Supreme Court of the United States 

BENJAMIN BLUMAN, ET AL., 

Appellants, 

v. 

FEDERAL ELECTION COMMISSION, 

Appellee. 

On Appeal From The United States District Court 

For The District Of Columbia 

OPPOSITION TO MOTION TO DISMISS OR 

AFFIRM 

November 21, 2011 

MICHAEL A. CARVIN

 Counsel of Record

JACOB M. ROTH

WARREN D. POSTMAN

JONES DAY

51 Louisiana Avenue, N.W. 

Washington, D.C. 20001 

macarvin@jonesday.com 

(202) 879-3939 

Counsel for Appellants 
 i 

TABLE OF CONTENTS

Page 

TABLE OF AUTHORITIES ....................................... ii 

INTRODUCTION ....................................................... 1 

I. “SETTLED LEGAL PRINCIPLES” 

PROVIDE THAT THE FIRST 

AMENDMENT PROTECTS RESIDENT 

ALIENS .............................................................. 3 

II. “SETTLED LEGAL PRINCIPLES” 

ESTABLISH THAT SPEECH IS NOT

“PARTICIPATION” IN GOVERNMENT .......... 5 

III. “SETTLED LEGAL PRINCIPLES” 

MAKE CLEAR THAT CONGRESS HAS 

NO LEGITIMATE INTEREST IN 

PREVENTING “INFLUENCE” ON 

VOTERS.............................................................. 8 

IV. UNDER “SETTLED LEGAL 

PRINCIPLES,” § 441E IS FATALLY 

OVERBROAD AND UNDERINCLUSIVE ........ 9 

CONCLUSION ......................................................... 12 
 ii 

TABLE OF AUTHORITIES

Page(s) 

CASES 

Ambach v. Norwick, 

441 U.S. 68 (1979) .................................................. 6 

Bridges v. Wixon, 

326 U.S. 135 (1945) ............................................ 2, 5

Buckley v. Valeo, 

424 U.S. 1 (1976) (per curiam) .......................... 2, 7 

Cabell v. Chavez-Salido, 

454 U.S. 432 (1982) ................................................ 6 

Citizens Against Rent Control v. City of 

Berkeley, 

454 U.S. 290 (1981) .............................................. 10

Citizens United v. FEC, 

130 S. Ct. 876 (2010) ..................................... passim

First Nat’l Bank of Boston v. Bellotti, 

435 U.S. 765 (1978) ............................................ 7, 9 

Foley v. Connelie, 

435 U.S. 291 (1978) ............................................ 5, 6 

Holder v. Humanitarian Law Project, 

130 S. Ct. 2705 (2010) ............................................ 8 

Kwong Hai Chew v. Colding, 

344 U.S. 590 (1953) ................................................ 5 

Nevada Comm’n on Ethics v. Carrigan, 

131 S. Ct. 2343 (2011) ........................................ 2, 7 

Reno v. Am.-Arab Anti-Discrimination Comm., 

525 U.S. 471 (1999) ................................................ 4 

Reynolds v. Sims, 

377 U.S. 533 (1964) ................................................ 7 
 iii 

TABLE OF AUTHORITIES

(continued) 

Page(s) 

Sorrell v. IMS Health Inc., 

131 S. Ct. 2653 (2011) ........................................ 2, 8 

United States v. Verdugo-Urquidez, 

494 U.S. 259 (1990) ................................................ 2 

Vannatta v. Keisling, 

151 F.3d 1215 (9th Cir. 1998)................................ 7 

Yick Wo v. Hopkins, 

118 U.S. 356 (1886) ................................................ 4 

CONSTITUTIONAL AND STATUTORY AUTHORITIES 

U.S. Const. amend. I ........................................ passim

U.S. Const. amend. IV ............................................... 4 

U.S. Const. amend. V ................................................ 4 

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

OTHER AUTHORITIES 

Bruce D. Brown, Alien Donors: The 

Participation of Non-Citizens in the U.S. 

Campaign Finance System, 

15 YALE L. & POL’Y REV. 503 (1997) ...................... 1 

Richard L. Hasen, Citizens United and the 

Illusion of Coherence, 

109 MICH. L. REV. 581 (2011) ................................ 1 

Toni M. Massaro, Foreign Nationals, Electoral 

Spending, and the First Amendment, 

34 HARV. J. L. & PUB. POL’Y 663 (2011) ................. 1 

Note, “Foreign” Campaign Contributions and 

the First Amendment, 

110 HARV. L. REV. 1886 (1997) .............................. 2 
INTRODUCTION 

The suggestion that this case presents no 

“substantial” question and should be disposed of 

summarily is, frankly, disingenuous. 

The Government opens with the claim that the 

decision below follows from “straightforward 

application of settled legal principles.” (MTD.10.) 

But this Court has never held that lawful resident 

aliens have any less right to speak than citizens do. 

This Court has never held that Congress may 

prohibit all campaign contributions from specified 

individuals. This Court has never permitted a limit 

on individuals’ independent expenditures, much less 

a complete ban. This Court has never upheld a 

legislative finding that a class of residents has no role 

to play in political debate. This Court has never 

recognized as legitimate, let alone compelling, a state 

interest in preventing constitutionally protected 

speakers from influencing the American public. And 

this Court has only twice in its history upheld a 

restriction on speech under strict scrutiny. 

If the constitutionality of § 441e were settled, this 

Court would not have expressly reserved the question 

just two years ago, in Citizens United v. FEC, 130 S. 

Ct. 876, 911 (2010). Nor would scholars friendly to 

campaign finance restrictions have concluded, 

following over a decade of robust academic debate, 

that it is “difficult to see” how the statute could 

survive under current law. Richard L. Hasen, 

Citizens United and the Illusion of Coherence, 109 

MICH. L. REV. 581, 605-610 (2011); see also Toni M. 

Massaro, Foreign Nationals, Electoral Spending, and 

the First Amendment, 34 HARV. J. L. & PUB. POL’Y

663 (2011); Bruce D. Brown, Alien Donors: The 
 2 

Participation of Non-Citizens in the U.S. Campaign 

Finance System, 15 YALE L. & POL’Y REV. 503 (1997); 

Note, “Foreign” Campaign Contributions and the 

First Amendment, 110 HARV. L. REV. 1886 (1997). 

In fact, the Government’s motion is irreconcilable 

with this Court’s doctrine, and it is Appellants’

position that follows from “straightforward 

application of settled legal principles.” The 

Government questions whether resident aliens have 

First Amendment rights at all. (MTD.27.) But this 

Court has said, in no uncertain terms, that “resident 

aliens have First Amendment rights.” United States 

v. Verdugo-Urquidez, 494 U.S. 259, 271 (1990) (citing 

Bridges v. Wixon, 326 U.S. 135, 148 (1945)). The 

Government asserts a compelling interest in 

preventing constitutionally-protected persons from 

“attempting to sway American elections.” (MTD.2.) 

Yet this Court has repeatedly affirmed that “fear that 

speech might persuade provides no lawful basis for 

quieting it.” Sorrell v. IMS Health Inc., 131 S. Ct. 

2653, 2670 (2011). The Government protests that 

campaign advocacy cannot be differentiated from 

“participation in democratic self-government.” 

(MTD.22.) This Court, however, has always 

distinguished between “performing a governmental 

act” and exercising “personal First Amendment 

rights.” Nevada Comm’n on Ethics v. Carrigan, 131 

S. Ct. 2343, 2351 n.5 (2011). The Government 

implicitly suggests that it has a stronger interest in 

preventing political spending by aliens than in 

limiting their speech on a soapbox. (MTD.10, 26.) 

But this Court squarely rejected that distinction in 

Buckley v. Valeo, 424 U.S. 1 (1976) (per curiam). 
 3 

Notwithstanding its ambitious opening claim, the 

Government’s affirmative argument—for upholding 

under strict scrutiny a flat ban on core political 

speech by lawful residents of the United States—

ultimately hinges on nothing more than an alleged 

“insight that has guided the Court’s equal-protection 

jurisprudence.” (MTD.13.) This “insight”—that 

aliens may be treated differently from citizens with 

respect to “political functions of government”—has no 

force in defending a ban on political speech. Even if 

it did, however, extension of that “insight” to support 

a compelling interest in silencing political speech 

would be an unprecedented holding with wideranging implications. However this Court resolves it, 

the question presented by Appellants’ challenge is 

undoubtedly a “substantial” one. 

I. “SETTLED LEGAL PRINCIPLES” PROVIDE THAT THE 

FIRST AMENDMENT PROTECTS RESIDENT ALIENS. 

The starting point of Appellants’ argument is 

that, as lawful resident aliens, they are entitled to 

the full protections of the First Amendment. The 

Government initially describes this as an 

“unremarkable proposition.” (MTD.14.) Quite so. 

Indeed, were it otherwise, individuals such as 

Appellants—who have lawfully resided, worked, and 

paid taxes in the United States for years—could be 

imprisoned for criticizing the President in a park or 

practicing their religion of choice. 

But then the Government hedges. It disputes 

that Appellants are entitled “to invoke every aspect of 

‘the freedom of speech’ that the First Amendment 

guarantees to citizens,” and questions whether they 

may claim “the full panoply of rights guaranteed to 

citizens.” (MTD.27 (emphases added)). It contends, 
 4 

instead, that “[c]itizenship is a permissible criterion” 

for determining who may invoke the constitutional 

right to freedom of speech. (MTD.15.) 

The district court assumed that § 441e was 

subject to strict scrutiny; that the Government finds 

it necessary to retreat from that opinion itself 

demonstrates the need for plenary review. But, in all 

events, the claim that the First Amendment does not 

apply in full to resident aliens is hardly “settled.” To 

the contrary, “[i]t is well settled that ‘freedom of 

speech and of press is accorded aliens residing in this 

country.’” Reno v. Am.-Arab Anti-Discrimination 

Comm., 525 U.S. 471, 497 (1999) (Ginsburg, J., 

concurring in part and in the judgment) (emphasis 

added). In fact, Appellants are aware of no decision 

by any court holding—or even hinting—that lawful 

resident aliens lack full First Amendment rights. 

And the Government does not cite one. 

At times, the Government suggests (again, 

without citation) that First Amendment rights accrue 

gradually, with various “aspect[s]” of the freedom of 

speech kicking in at different indeterminate times, as 

an alien develops greater connections with the 

United States. (See MTD.27.) But there is no 

support for such a piecemeal, standardless approach, 

under which an alien is entitled to constitutional 

protection only after a case-by-case analysis of the 

activity in question and the alien’s connections to the 

United States. Aliens obtain the protections of some 

constitutional provisions, such as the Due Process 

Clause, upon entering the “territorial jurisdiction” of 

the United States. Yick Wo v. Hopkins, 118 U.S. 356, 

369 (1886). They may invoke other provisions, like 

the First and Fourth Amendments, once they 
 5 

“lawfully enter[] and reside[] in this country.” Kwong 

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

(quoting Bridges, 326 U.S. at 161 (Murphy, J., 

concurring) (emphasis added)). And they receive a 

final set of rights, “to vote, or to run for elective 

office,” upon naturalizing as citizens. Foley v. 

Connelie, 435 U.S. 291, 296 (1978). To the extent 

that the Government is offering an alternative 

“sliding scale” approach to constitutional rights, it is 

unworkable and without legal precedent—certainly 

not a “settled legal principle.” 

Any attempt to justify the decision below on the 

alternative ground that resident aliens like 

Appellants have less than full-fledged First 

Amendment rights would be both novel and highly 

important, affecting a substantial number of people 

living in the United States as to a wide range of 

constitutional liberties. This Court should not accept 

any such justification without at least granting 

plenary consideration. 

II. “SETTLED LEGAL PRINCIPLES” ESTABLISH THAT 

SPEECH IS NOT “PARTICIPATION” IN GOVERNMENT. 

When the Government does attempt to defend 

§ 441e under strict scrutiny, its principal claim is 

that resident aliens may permissibly be precluded 

from “participat[ing] in the fundamental operations 

of democratic self-government.” (MTD.14.) Like the 

district court, the Government relies exclusively on 

equal protection cases—cases that apply rational 

basis review, not strict scrutiny. (MTD.11-12.) The 

Government admits as much, but insists that the 

“insight that has guided the Court’s equal protection 

jurisprudence in this area . . . is equally relevant to 

the First Amendment inquiry here.” (MTD.13.) 
 6 

It is not. That certain criteria (like alienage, or 

prior convictions) are reasonable bases for disparate 

treatment as to voting or government hiring does not 

imply that aliens or felons lack First Amendment 

rights. In all events, as Appellants have explained, 

political speech is not participation in government. 

(JS.21-24.) The two are fundamentally different as a 

matter of theory and doctrine. 

This Court has correctly recognized that, as a 

matter of constitutional history and understanding, 

“a democratic society is ruled by its people.” Foley, 

435 U.S. at 296. As such, aliens have no right to 

govern American society, whether directly (running 

for office) or indirectly (voting), on a large scale (as 

President) or within a minor bureaucratic fiefdom (as 

a police officer or school teacher). See, e.g., Cabell v. 

Chavez-Salido, 454 U.S. 432 (1982); Ambach v. 

Norwick, 441 U.S. 68 (1979); Foley, 435 U.S. 291. 

Appellants have no quarrel with these decisions. 

But they have no relevance here. Speaking about

government is not participating in it. Campaign 

advocacy seeks to persuade, not to govern. Appellant 

Bluman, by distributing pamphlets in support of the 

President, is not “ruling” American society. Nor is 

Appellant Steiman, when she makes a $100 

candidate contribution. This is participation in 

political dialogue, to be sure, but not in selfgovernment. Only if Americans find Appellants’ 

views convincing will those citizens choose to govern 

themselves accordingly. The Government’s theory 

ignores voters and demeans their role as independent 

actors; on its view, campaign advocates themselves 

pull the lever rather than relying on the persuasive 

effect of their speech to convince voters to do so. 
 7 

The Government’s vision of political speech is not 

only demeaning to voters, but also contrary to this 

Court’s cases. In Carrigan, a restriction on voting for 

a bill while under a conflict of interest was treated 

differently from a restriction on debating that bill, 

because “[t]he former is performing a governmental 

act . . . the latter is [an exercise of] personal First 

Amendment rights.” 131 S. Ct. at 2351 n.5. And 

while this Court has recognized that the right to 

govern is a zero-sum game, in which one vote dilutes 

others, e.g., Reynolds v. Sims, 377 U.S. 533 (1964), it 

has squarely rejected that view of the marketplace of 

ideas: When it comes to political expression, “more 

speech, not less, is the governing rule,” Citizens 

United, 130 S. Ct. at 911. The Government entirely 

ignores these crucial distinctions between political 

speech and participation in self-government. 

The Government also refuses to admit the 

inescapable implications of its position that the two 

are one and the same. First, if paid-for campaign 

speech constitutes proscribable participation in 

government, so too must campaign speech on a 

soapbox. See Buckley, 424 U.S. at 16. Second, if 

election-related speech can be prohibited as 

participation in self-government, there is no reason 

why issue advocacy, petitioning, or contacting elected 

representatives—all of which equally relate to 

democratic government—could not also be prohibited. 

Third, if the U.S. may forbid aliens to participate in 

American self-government through campaign 

spending, then Oregon may prohibit non-Oregonians 

from participating in Oregon self-government 

through such spending. But see Vannatta v. 

Keisling, 151 F.3d 1215, 1218 (9th Cir. 1998) 

(invalidating such a law). The Government responds 
 8 

that non-residents of Oregon are members of the 

American political community (MTD.16), but the 

essential point is that they are not members of 

Oregon’s political community. 

The Government’s refusal to acknowledge these 

striking implications reflects the novelty and 

ambition of its endeavor. The Government relies on a 

phrase, “democratic self-government,” plucked from 

an inapposite body of equal-protection law, and 

attempts to apply it for the first time as a ground for 

banning speech. Yet the Government offers no 

definition of that critical phrase and no basis for 

limiting the striking implications of its position. If 

§ 441e is to be upheld on this theory, it must at least 

be following plenary consideration and a reasoned 

opinion defining and explaining its limits. 

III. “SETTLED LEGAL PRINCIPLES” MAKE CLEAR THAT 

CONGRESS HAS NO LEGITIMATE INTEREST IN 

PREVENTING “INFLUENCE” ON VOTERS. 

The Government, like the district court, is open 

about the goals of § 441e. The purpose of silencing 

resident aliens is “to prevent [them] from attempting 

to sway American elections.” (MTD.2.) Congress 

worried that aliens’ campaign speech might 

“interfere” with “American democratic governance,” 

by convincing Americans to take action. (MTD.10.) 

That this could be a “compelling” interest under 

strict scrutiny—analogous to prevention of terrorism, 

see Holder v. Humanitarian Law Project, 130 S. Ct. 

2705, 2725 (2010)—is a novel claim with far-reaching 

implications. How anyone could believe that “settled 

legal principles” make it so is beyond comprehension. 

Over and over, this Court has said just the opposite. 

See, e.g., Sorrell, 131 S. Ct. at 2671 (“That the State 
 9 

finds expression too persuasive does not permit it to 

quiet the speech or to burden its messengers.”); 

Citizens United, 130 S. Ct. at 908 (“The First 

Amendment confirms the freedom to think for 

ourselves.”); First Nat’l Bank of Boston v. Bellotti, 

435 U.S. 765, 790 (1978) (“[T]hat advocacy may 

persuade the electorate is hardly a reason to 

suppress it.”). Against all this, the Government does 

not cite any case recognizing an interest in “influence 

prevention” as even legitimate, much less compelling. 

The Government contends that it may stamp out 

influence from resident aliens’ speech because 

Congress has determined that resident aliens “have 

no legitimate role to play” in the political debate. 

(MTD.17 n.6.) But, in the realm of political speech, 

that is not Congress’ decision to make. Rather, the 

Constitution assigns to voters “the responsibility for 

judging and evaluating the relative merits of 

conflicting arguments.” Bellotti, 435 U.S. at 791-92. 

If this Court is to add a new “compelling interest” 

to the strict scrutiny lexicon—especially one that, at 

best, appears to be in considerable tension with basic 

First Amendment values—it certainly should not do 

so on a summary basis, without plenary review. 

IV. UNDER “SETTLED LEGAL PRINCIPLES,” § 441e IS 

FATALLY OVERBROAD AND UNDERINCLUSIVE. 

Having staked out the novel position that resident 

aliens may be barred from speaking based on a 

“compelling interest” in silencing their speech, the 

Government attempts to explain away the failures of 

§ 441e to serve its supposed goal. Its attempt reduces 

strict scrutiny to a shadow of its normal self and only 

highlights how the Government’s position steers it 

into uncharted constitutional waters. 
 10 

If Congress believed a ban on campaign speech 

was justified by a compelling need to root out noncitizen influence on democratic actors, then it should 

also have banned aliens from lobbying or spending on 

ballot initiatives. As to the latter, the Government 

contends that “this Court has firmly distinguished 

the governmental interests in safeguarding candidate 

elections from the interests implicated by ballot 

measures.” (MTD.24 (citing Citizens Against Rent 

Control v. City of Berkeley, 454 U.S. 290, 299 (1981)). 

But, as Appellants explained (JS.26), that case 

distinguished candidate elections based on the risk of

corrupting candidates. That is irrelevant where the 

alleged state interest is not preventing corruption but 

rather preventing “influence” on voters. 

Likewise, if Congress sought to prevent noncitizen influence on democratic governance, it should 

have banned campaign spending by LPRs. Yet 

§ 441e consciously excludes LPRs. The Government 

responds that LPRs have more “durable” ties to the 

United States (MTD.22), but, as the Government’s 

equal-protection cases hold, those ties do not allow 

them to participate in American self-government—

which the Government’s theory makes paramount. 

The proffered defense of § 441e’s overinclusion 

fares no better. While the law concededly bars 

campaign spending even by those aliens who can 

participate in government, the Government says 

Appellants cannot raise this objection because they

cannot so participate. (MTD.25.) But the narrow 

tailoring requirement calls for just this type of 

inquiry. See, e.g., Citizens United, 130 S. Ct. at 911. 

Analyzing overinclusion routinely requires looking at 

how the challenged law treats non-litigants. 
 11 

Section 441e also goes too far by prohibiting 

contributions even to domestic advocacy groups like 

the Club for Growth. The Government’s response is 

mysterious at best. It seems to suggest—contrary to 

the FEC’s position below and the district court’s 

holding (App.6a)—that such donations are permitted. 

(MTD.25.) But it also says that donations to 

advocacy groups are prohibited if the funds “are 

given or spent in connection with an election.” Since 

the Club for Growth does spend some funds on 

independent expenditures, that suggests that aliens’ 

donations to it are forbidden. The resulting 

uncertainty concerning whether resident aliens may 

lawfully contribute to § 501(c)(4) organizations is 

itself enough reason for this Court’s plenary review. 

Finally, § 441e cannot survive unless the 

Government shows that less-restrictive alternatives, 

such as special disclosure requirements, would be 

insufficient. The Government says that “Congress 

tried that approach in 1938 [and i]t did not work.” 

(MTD.26.) This is revisionist history. What 

Congress tried was to require disclosure by agents of 

overseas principals. (MTD.2.) It “did not work” 

because it did not prevent foreign agents from 

“funneling campaign contributions” from overseas or 

prevent overseas principals from spending directly. 

(MTD.2-3). It was to fill this gap that Congress 

banned contributions from all foreign nationals, 

except permanent residents. (MTD.3-6.) Despite its 

artful wording, the Government’s historical overview 

does not contain a single anecdote in which Congress 

expressed concern about the speech in this case: 

political spending by a U.S. resident not on behalf of 

an overseas principal. And the Government cites no 

evidence suggesting that, if Congress had concerns 
 12 

with such speech, strict disclosure requirements 

would not have ameliorated them. 

Indeed, far from showing a concerted attempt to 

stamp out the political speech of resident aliens, the 

history of § 441e demonstrates that Appellants were 

almost certainly swept up unintentionally in efforts 

to ban political spending from overseas, whether 

funneled indirectly through an agent or injected 

directly from abroad. (JS.4.) It is therefore not 

surprising that § 441e fails to align with the 

Government’s post hoc vision of it. The statute was 

not designed to eliminate the influence of political 

speech by resident aliens, is not remotely tailored to 

that end, and cannot be upheld on that basis. 

CONCLUSION 

The Court should deny the Government’s motion 

to dismiss or affirm, note probable jurisdiction, and 

set this case for oral argument. 

 Respectfully submitted, 

November 21, 2011 

MICHAEL A. CARVIN

Counsel of Record 

JACOB M. ROTH

WARREN D. POSTMAN

JONES DAY

51 Louisiana Avenue, N.W. 

Washington, D.C. 20001 

(202) 879-3939 

macarvin@jonesday.com 

Counsel for Appellants