No. 11-____ 

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 

JURISDICTIONAL STATEMENT 

September 1, 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 
QUESTION PRESENTED 

 

Whether Congress violates the First Amendment 

by making it a crime for individuals who lawfully 

reside in the United States, but are neither U.S. 

citizens nor “permanent residents” under the 

immigration laws, to make independent expenditures 

or campaign contributions in connection with any 

federal, state, or local election; or whether, as the 

district court held, the ban satisfies strict scrutiny as 

a “piecemeal” attempt to reduce the “influence” on 

“how voters will cast their ballots” of aliens whom 

Congress may suspect of lacking “primary loyalty” to 

the nation. 
 ii 

PARTIES TO THE PROCEEDINGS 

 Appellants here, who were Plaintiffs below, are 

Benjamin Bluman and Dr. Asenath Steiman. 

 Appellee here, who was Defendant below, is 

the Federal Election Commission. 

 
 iii 

TABLE OF CONTENTS

Page 

QUESTION PRESENTED .......................................... i 

PARTIES TO THE PROCEEDINGS ......................... ii 

TABLE OF AUTHORITIES ...................................... vi 

OPINION BELOW ..................................................... 1 

JURISDICTION ......................................................... 1 

CONSTITUTIONAL AND STATUTORY 

PROVISIONS ............................................................. 1 

STATEMENT ............................................................. 3 

I. The Statute and Its History .............................. 3 

II. This Litigation ................................................... 5 

III. The District Court’s Decision ............................ 6 

THE QUESTION PRESENTED IS 

SUBSTANTIAL .......................................................... 8 

I. RESIDENT ALIENS ARE PROTECTED 

BY THE FIRST AMENDMENT AND 

THUS MAY SPEND MONEY TO 

EXPRESS THEIR POLITICAL VIEWS .......... 11 

A. Text, History, and Precedent Confirm 

That Resident Aliens Are Entitled to 

the Freedom of Speech ............................... 11 

B. “Freedom of Speech” Embraces the 

Freedom To Contribute to Candidates 

and To Spend Money To Advocate for 

or Against Them......................................... 14 

C. Section 441e Does Not Remotely 

Satisfy Strict Scrutiny ............................... 16 
 iv 

TABLE OF CONTENTS

(continued) 

Page 

1. Diminishing the “influence” of 

speech is the antithesis of a 

“compelling interest”. .......................... 17 

2. The Equal Protection Cases upon 

Which the District Court Relied 

Are Irrelevant. ..................................... 21 

3. Even if Congress has a 

“compelling interest” in reducing 

the “influence” of resident aliens’ 

speech, § 441e is not narrowly 

tailored to that end. ............................. 25 

II. THE DISTRICT COURT’S OPINION 

SETS DANGEROUS PRECEDENT ON 

CAMPAIGN FINANCE REGULATION, 

THE FIRST AMENDMENT, AND THE 

CONSTITUTIONAL RIGHTS OF 

RESIDENT ALIENS ....................................... 29 

A. The District Court’s Precedent 

Undermines the Basic Logic of This 

Court’s Campaign Finance 

Jurisprudence ............................................ 30 

B. The District Court’s Precedent Turns 

Core First Amendment Principles on 

Their Heads ................................................ 32 

C. The District Court’s Precedent 

Imperils the Constitutional Rights of 

Resident Aliens .......................................... 34 

CONCLUSION ......................................................... 37 
 v 

TABLE OF CONTENTS

(continued) 

Page 

APPENDIX A: Opinion of the United States 

District Court for the District of Columbia ............. 1a 

APPENDIX B: Order and Final Judgment of 

the United States District Court for the 

District of Columbia ............................................... 24a 

APPENDIX C: Notice of Appeal ............................ 26a 

APPENDIX D: Certificate of Service .................... 28a 
vi 

TABLE OF AUTHORITIES 

 

Page(s) 

CASES 

Ambach v. Norwick, 

441 U.S. 68 (1979) ................................................ 21 

Ashcroft v. Free Speech Coalition, 

535 U.S. 234 (2002) .............................................. 36 

Austin v. Michigan Chamber of Commerce, 

494 U.S. 652 (1990) ........................................ 14, 32 

Az. Free Enterprise Club’s Freedom Club PAC 

v. Bennett, 

131 S. Ct. 2806 (2011) .................................... 19, 23 

Bernal v. Fainter, 

467 U.S. 216 (1984) .............................................. 16 

Bridges v. California, 

314 U.S. 252 (1941) .............................................. 13 

Bridges v. Wixon, 

326 U.S. 135 (1945) .............................................. 13 

Brown v. Entm’t Merchs. Ass’n, 

131 S. Ct. 2729 (2011) .......................................... 25 

Buckley v. Valeo, 

424 U.S. 1 (1976) (per curiam) ..................... passim

Burson v. Freeman, 

504 U.S. 191 (1992) ........................................ 16, 17 

Cabell v. Chavez-Salido, 

454 U.S. 432 (1982) .................................. 21, 22, 36 

Citizens Against Rent Control v. City of 

Berkeley, 

454 U.S. 290 (1981) .............................................. 26 

Citizens United v. FEC, 

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

TABLE OF AUTHORITIES 

(continued) 

Page(s) 

Edenfield v. Fane, 

507 U.S. 761 (1993) .............................................. 33 

FEC v. Beaumont, 

539 U.S. 146 (2003) .............................................. 15 

FEC v. Colo. Republican Fed. Campaign 

Comm., 

533 U.S. 431 (2001) .............................................. 14 

FEC v. Wisc. Right to Life, Inc., 

551 U.S. 449 (2007) .............................................. 14 

First Nat’l Bank of Boston v. Bellotti, 

435 U.S. 765 (1978) .............................................. 19 

Foley v. Connelie, 

435 U.S. 291 (1978) .................................. 21, 22, 36 

Fong Yue Ting v. United States, 

149 U.S. 698 (1893) .............................................. 13 

Hicks v. Miranda, 

422 U.S. 332 (1975) .................................... 8, 11, 29 

Holder v. Humanitarian Law Project, 

130 S. Ct. 2705 (2010) .................................... 16, 17 

Katebi v. Ashcroft, 

396 F.3d 463 (1st Cir. 2005) ................................ 27 

Kingsley Int’l Pictures Corp. v. Regents, 

360 U.S. 684 (1959) .............................................. 19 

Korematsu v. United States, 

323 U.S. 214 (1944) .............................................. 29 

Kwong Hai Chew v. Colding, 

344 U.S. 590 (1953) .............................................. 13 

Mathews v. Diaz, 

426 U.S. 67 (1976) ................................................ 21 
 viii 

TABLE OF AUTHORITIES 

(continued) 

Page(s) 

McAuliffe v. Mayor of New Bedford, 

155 Mass. 216 (1892) ........................................... 22 

McConnell v. FEC, 

540 U.S. 93 (2003) .......................................... 24, 28 

McIntyre v. Ohio Elections Comm’n, 

514 U.S. 334 (1995) .............................................. 22 

Meese v. Keene, 

481 U.S. 465 (1987) ........................................ 28, 29 

Miller v. Johnson, 

515 U.S. 900 (1995) ........................................ 16, 34 

N.Y. State Bd. of Elections v. Lopez Torres, 

552 U.S. 196 (2008) .............................................. 18 

Nevada Commission on Ethics v. Carrigan, 

131 S. Ct. 2343 (2011) .................................... 22, 23 

R.A.V. v. City of St. Paul, 

505 U.S. 377 (1992) .............................................. 36 

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

525 U.S. 471 (1999) .............................................. 14 

Sorrell v. IMS Health Inc., 

131 S. Ct. 2653 (2011) .................................... 19, 32 

Sugarman v. Dougall, 

413 U.S. 634 (1973) ........................................ 21, 36 

Tashjian v. Republican Party of Conn., 

479 U.S. 208 (1986) .............................................. 27 

Thornhill v. Alabama, 

310 U.S. 88 (1940) .......................................... 19, 34 

United States v. Playboy Entm’t Grp., Inc., 

529 U.S. 803 (2000) .............................................. 16 
 ix 

TABLE OF AUTHORITIES 

(continued) 

Page(s) 

United States v. Stevens, 

130 S. Ct. 1577 (2010) .......................................... 35 

United States v. Verdugo-Urquidez, 

494 U.S. 259 (1990) .............................................. 13 

Vannatta v. Keisling, 

151 F.3d 1215 (9th Cir. 1998)........................ 24, 31 

Whitney v. California, 

274 U.S. 357 (1927) .............................................. 23 

Zauderer v. Office of Disciplinary Counsel, 

471 U.S. 626 (1985) .............................................. 25 

CONSTITUTIONAL AND STATUTORY AUTHORITIES 

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

U.S. Const. amend. XV ............................................ 12 

U.S. Const. art. I, § 2, cl. 2 ...................................... 12 

U.S. Const. art. I, § 4 ............................................... 27 

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

8 U.S.C. § 1101(a) ...................................................... 4 

22 U.S.C. § 611 et seq. ............................................. 28 

Bipartisan Campaign Reform Act of 2002, 

Pub. L. No. 107-155, 116 Stat. 81 (2002) ...... 1, 5, 6 

Federal Election Campaign Act, 

Pub. L. No. 94-283, 90 Stat. 475 ........................... 5 

Federal Election Campaign Act Amendments 

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

88 Stat. 1263 .......................................................... 4 

Foreign Agents Registration Act, 

Pub. L. No. 89-486, 80 Stat. 244 ..................... 3, 28 
 x 

TABLE OF AUTHORITIES 

(continued) 

Page(s) 

Takoma Park, Md., Town Charter 

Art. VI, § 601 ........................................................ 27 

OTHER AUTHORITIES 

8 C.F.R. § 214.6(h)(1)(iv) ......................................... 27 

8 C.F.R. § 299.1 ........................................................ 27 

42 C.F.R. § 435.408 .................................................... 4 

120 Cong. Rec. 8782 (Mar. 28, 1974) ............ 4, 17, 26 

148 Cong. Rec. H448 (Feb. 13, 2002) ...................... 36 

Contribution Limitations and Prohibitions, 

67 Fed. Reg. 69,928 (Nov. 19, 2002) ...................... 5 

FEC Advisory Op. 1980-95 ...................................... 25 

FEC Advisory Op. 1984-62 ...................................... 25 

H. Amdt. 453 to H.R. 417 (106th Cong.) ................. 36 

Richard L. Hasen, Citizens United and the 

Illusion of Coherence, 109 Mich. L. Rev. 581 

(2011) .................................................................... 17 

Brian C. Mooney, Outside Donations Buoyed 

Brown, Boston Globe, Feb. 24, 2010 ................... 31 

Jamin B. Raskin, Legal Aliens, Local Citizens: 

The Historical, Constitutional and 

Theoretical Meanings of Alien Suffrage, 

141 U. Pa. L. Rev. 1391 (1993) ............................ 12 

Nancy Rytina, Estimates of the Legal 

Permanent Resident Population in 2009

(Office of Immigration Statistics, Dep’t of 

Homeland Security, Nov. 2010) .......................... 36 

Michael J. Wishnie, Immigrants and the Right 

to Petition, 78 N.Y.U. L. Rev. 667 (2003) ........... 12
OPINION BELOW 

The district court’s opinion dismissing Appellants’ 

Complaint, while not yet reported in the Federal 

Supplement, is reprinted at App.1a. 

JURISDICTION 

The United States District Court for the District 

of Columbia entered judgment on August 8, 2011. 

App.24a. Appellants filed their timely notice of 

appeal on August 12, 2011. App.26a. This Court has 

appellate jurisdiction under § 403(a)(3) of the 

Bipartisan Campaign Reform Act of 2002 (“BCRA”), 

Pub. L. No. 107-155, 116 Stat. 81, 113-14. 

CONSTITUTIONAL AND STATUTORY 

PROVISIONS 

The First Amendment to the Constitution provides: 

Congress shall make no law respecting an 

establishment of religion, or prohibiting the 

free exercise thereof; or abridging the 

freedom of speech, or of the press; or the 

right of the people peaceably to assemble, 

and to petition the Government for a redress 

of grievances. 

Title 2 U.S.C. § 441e provides: 

(a) Prohibition 

It shall be unlawful for— 

 

 (1) a foreign national, directly or 

indirectly, to make— 
 2 

 (A) a contribution or donation of 

money or other thing of value, or to make an 

express or implied promise to make a 

contribution or donation, in connection with a 

Federal, State, or local election; 

 (B) a contribution or donation to a 

committee of a political party; or 

 (C) an expenditure, independent 

expenditure, or disbursement for an 

electioneering communication (within the 

meaning of section 434(f)(3) of this title); or 

 (2) a person to solicit, accept, or receive a 

contribution or donation described in 

subparagraph (A) or (B) of paragraph (1) from 

a foreign national. 

(b) “Foreign national” defined 

As used in this section, the term “foreign 

national” means— 

 (1) a foreign principal, as such term is 

defined by section 611(b) of title 22, except 

that the term “foreign national” shall not 

include any individual who is a citizen of the 

United States; or 

 (2) an individual who is not a citizen of the 

United States or a national of the United 

States (as defined in section 1101(a)(22) of 

title 8) and who is not lawfully admitted for 

permanent residence, as defined by section 

1101(a)(20) of title 8. 
 3 

STATEMENT 

This case presents an as-applied constitutional 

challenge to 2 U.S.C. § 441e, which prohibits—on 

pain of imprisonment—any individual who is not a 

citizen, national, or lawful permanent resident of the 

United States from spending any money to speak 

about any election in the United States, whether 

through contributions to candidates or political 

parties, independent expenditures to advocate for 

candidates, or even donations to domestic, thirdparty groups that, in turn, engage in contributions or 

advocacy expenditures. App.6a. As the court below 

acknowledged, the case implicates “foundational” 

questions about the First Amendment, the nature of 

political spending, and the constitutional rights of 

resident aliens. App.9a. 

I. The Statute and Its History. 

The statutory history of § 441e reflects a 

congressional desire to limit domestic political 

spending by overseas actors. The statutory 

prohibitions trace back to 1966, when Congress 

amended the Foreign Agents Registration Act 

(“FARA”). Pub. L. No. 89-486, 80 Stat. 244. In the 

amendments, Congress banned any “agent of a 

foreign principal” from “mak[ing] any contribution of 

money . . . in connection with an election to any 

political office.” Id. § 8(a), 80 Stat. at 248. The term 

“foreign principal” was defined to include a host of 

overseas entities, including “the government of a 

foreign country,” any “person domiciled abroad,” and 

“any foreign business . . . or political organization.” 

52 Stat. 632-33 (1938). The 1966 amendments thus 

prohibited overseas entities from employing agents 

inside the U.S. to make contributions to candidates. 
 4 

Congress soon discovered a loophole: While 

agents of foreign principals were prohibited from 

making campaign contributions, overseas entities 

were free to make contributions directly, simply by 

bypassing use of an agent. See 120 Cong. Rec. 8782 

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

Congress responded in 1974 by expanding FARA’s 

contribution ban to cover all “foreign nationals.” See 

id. (emphasizing need to fix “giant loophole” in 

FARA); Federal Election Campaign Act Amendments 

of 1974, Pub. L. No. 93-443, § 101(d), 88 Stat. 1263, 

1267. The amendment defined “foreign nationals” to 

include any “individual who is not a citizen of the 

United States and who is not lawfully admitted for 

permanent residence.” Pub. L. No. 93-443, 

§ 101(d)(3), 88 Stat. at 1267.1

Although the 1974 amendment closed the loophole 

available to overseas entities, it also had broader 

effects. By extending the contribution ban from the 

agents of overseas principals to all noncitizens except 

permanent residents, the ban swept in lawful but

nonpermanent residents of the United States. The 

legislative history indicates that Congress paid little 

attention to this particular expansion of the law’s 

applicability. See 120 Cong. Rec. 8783-84 (Mar. 28, 

1974) (colloquy between Sens. Bentsen and Cannon 

appearing to contemplate only “permanent 

residents,” on one hand, and “tourists,” on the other). 

 1 “[P]ermanent residence” is one of several immigration 

classifications that permit certain aliens to reside in the U.S. 

indefinitely. See 8 U.S.C. § 1101(a)(13)(C); see also 42 C.F.R. 

§ 435.408 (listing additional categories of such aliens). The law 

also recognizes categories of aliens who are authorized to reside 

in the U.S. for a limited time. See 8 U.S.C. § 1101(a)(15). 
 5 

Congress re-codified the foreign contribution ban 

at its current location, 2 U.S.C. § 441e, as part of 

1976 amendments to the Federal Election Campaign 

Act (“FECA”), see Pub. L. No. 94-283, 90 Stat. 475; 

and replaced FECA’s version of the ban with the 

current language as part of BCRA, Pub. L. No. 107-

155, 116 Stat. 81, 96 (2002). BCRA expanded the ban 

beyond contributions, to cover expenditures and even 

independent expenditures. It also clarified that the 

ban—unique among campaign-finance restrictions—

applies not only to federal campaigns, but also to 

state and local elections. 2 U.S.C. § 441e(a)(1)(A); see 

also Contribution Limitations and Prohibitions, 67 

Fed. Reg. 69,928, 69,940 (Nov. 19, 2002). 

II. This Litigation. 

Appellant Bluman is a citizen of Canada who 

attended Harvard Law School and works as an 

attorney for a law firm in New York. He has lawfully 

resided in the United States on a “TN” status since 

November 2009, and is entitled to remain until 

November 2012, at which point he anticipates 

applying for an additional three-year term. 

Appellant Steiman is a dual citizen of Canada and 

Israel, who is completing her medical residency at 

Beth Israel Medical Center in New York. She has 

lawfully resided in the United States on a “J-1” 

status since June 2009, and is entitled to remain at 

least until June 2012; her three-year term is subject 

to extension to a maximum of seven years. 

Appellants want to express their political views by 

contributing money to certain candidates for federal 

and state office. They also want to spend money 

independently to advocate for the election of their 

preferred candidates—Appellant Bluman by printing 
 6 

flyers that support the reelection of President Barack 

Obama and distributing them in Central Park; 

Appellant Steiman by donating to the independent 

Club for Growth, which runs advertisements 

advocating for candidates who promote economic 

liberty. However, § 441e bars Appellants, on pain of 

serious criminal penalties, from engaging in these 

forms of political expression. App.8a. 

Appellants filed suit against the Federal Election 

Commission (“FEC”) in the U.S. District Court for the 

District of Columbia, challenging § 441e as a 

violation of the First Amendment. Pursuant to 

§ 403(a)(1) of BCRA, a three-judge panel convened to 

hear the suit. The FEC moved to dismiss, and 

Appellants moved for summary judgment. 

III. The District Court’s Decision. 

On August 8, 2011, the district court granted the 

FEC’s motion and denied Appellants’. App.24a. 

The court upheld both the contribution ban and 

the expenditure ban of § 441e “under strict scrutiny.” 

App.9a. Relying on cases that permit the exclusion of 

noncitizens from “voting, serving as jurors, working 

as police or probation officers, or working as public 

school teachers” upon a showing of rational basis, the 

court inferred that the Government has “a compelling 

interest” in “limiting the participation of foreign 

citizens in activities of American democratic selfgovernment, and in thereby preventing foreign 

influence over the U.S. political process.” App.13a. 

The court found this to be an especially compelling 

interest given aliens’ suspected lack of “primary 

loyalty” to the country. App.19a. 
 7 

The court then concluded that political spending—

including independent expenditures like printing 

flyers and donations to domestic groups that, in turn, 

engage in independent expenditures—is “an integral 

aspect of the process by which Americans elect 

officials.” App.13a. As such, political spending 

constitutes “part of the overall process of democratic 

self-government” from which aliens are excludable. 

App.14a. In the court’s view, if aliens may be barred 

“from voting and serving as elected officers,” it 

“follows” that they may be barred from “seek[ing] to 

influence how voters will cast their ballots.” Id.

With respect to the narrow tailoring requirement 

of strict scrutiny, the district court held that 

“Congress may proceed piecemeal” in this area; the 

law’s failure to prohibit spending on ballot initiatives, 

or by permanent residents—who are functionally 

indistinguishable from many nonpermanent 

residents—was therefore irrelevant. App.19a-20a. 

Responding to Appellants’ citation of Citizens 

United v. FEC, 130 S. Ct. 876 (2010), and especially 

the Court’s condemnation of speaker-based 

restrictions on political speech, the district court 

invoked the dissenting opinion of Justice Stevens in 

that case. The court determined “the force of Justice 

Stevens’s statement to be a telling and accurate 

indicator of where the Supreme Court’s jurisprudence 

stands on the question of foreign contributions and 

expenditures.” App.16a. And, finally, the court 

noted that foreign nations impose similar restrictions 

on political spending, highlighting a “common 

international understanding” on the issue. App.21a. 
 8 

THE QUESTION PRESENTED IS SUBSTANTIAL 

This Court grants plenary review on direct appeal 

if the question presented is “a substantial one.” 

Hicks v. Miranda, 422 U.S. 332, 344 (1975). This 

standard is plainly met given that the court below 

upheld a speaker-based ban on political speech on the 

theory that Congress may seek to limit the 

“influence” of constitutionally-protected speakers 

about whose “loyalty” it harbors doubts. All the more 

so seeing as the court did so under strict scrutiny, all 

while relying on cases applying rational-basis review. 

In upholding both § 441e’s complete ban on 

contributions and its complete ban on independent 

expenditures, the district court erred. As the FEC 

and the court below acknowledged, Appellants—as 

lawful residents of the United States—are entitled to 

the full protections of the First Amendment. And 

there can be no doubt that the First Amendment 

safeguards, above all, the right to political speech, 

even if the speaker must spend money to transmit his 

message. These uncontested propositions together 

establish the unconstitutionality of § 441e. 

Neither Congress’s desire to limit Appellants’ 

“influence” over American voters, nor its judgment 

that resident aliens lack adequate “loyalty” or 

sufficient “stake” in the debate, remotely satisfy the 

demanding standards of strict scrutiny, or any other 

form of heightened scrutiny. To the contrary, those 

legislative purposes expose the fundamental 

inconsistency of § 441e with the First Amendment. 

To be sure, Congress is free to restrict the speech of 

those who live overseas and are accordingly not 

entitled to seek refuge in the Constitution of the 

United States. But the First Amendment is 
 9 

specifically designed to preclude the Government 

from deciding who among “the People” protected by 

the Constitution holds views worthy of consideration 

and who must be kept from “influencing” American 

voters through their speech. 

The district court built its analysis on a line of 

cases that apply rational-basis review to uphold, 

against Equal Protection challenge, the exclusion of 

aliens from voting and holding certain public offices. 

That is, the court inverted Justice Holmes’s famous 

aphorism and held that, because Appellants have “no 

constitutional right to be a policeman,” they also lack 

“a constitutional right to talk politics.” But the 

permissibility of excluding aliens from the privileges 

of citizenship in no way justifies censorship of their 

political speech. Aliens have no constitutional right 

to vote or hold public office, and granting them that 

right would dilute the sovereign power of the 

citizenry; resident aliens do have a right to political 

speech, which harms no one and instead enriches the 

marketplace of ideas. Americans deserve to hear 

what resident aliens have to say, and are free to 

consider or ignore it when they exercise their 

exclusive right to vote. Section 441e paternalistically 

“protects” them from this choice. 

Given that the court invoked rational-basis 

caselaw to develop a “compelling interest” to support 

§ 441e, it is not surprising that its narrow-tailoring 

analysis borrows from that caselaw as well. Section 

441e protects voters from the influence of aliens’ 

speech in candidate elections, but fails to protect 

them from such influence in ballot initiatives; 

through alien lobbying activity; or if the alien is 

classified by the immigration code as a “permanent 
 10 

resident.” Yet the court dismissed this stark 

underinclusion by claiming that Congress may 

proceed “piecemeal”—the opposite of the rule under 

strict scrutiny. Conversely, § 441e bars resident 

aliens from speaking about even those elections in 

which they can vote; from speaking about purely local 

elections in which the federal government has no 

interest; and from donating to domestic groups that 

cannot be said to effect foreign influence. The district 

court did not even address this substantial 

overinclusion. And the court further ignored the less 

restrictive means that were available to Congress to 

achieve its (impermissible) goal. In particular, 

disclosure requirements could warn American voters 

to take resident aliens’ views with a grain of salt. 

The decision below is not simply wrong; it is 

dangerous. In upholding § 441e, the court drafted a 

road-map for every legislature that wants to take 

another crack at criminalizing political spending. By 

recognizing a novel and vague “compelling interest” 

in preventing the “influence” of speech, and deferring 

to congressional judgment about which speakers have 

sufficient “stake” to speak to an issue, the court’s 

decision subverts both established campaign finance 

law and First Amendment jurisprudence generally. 

The court’s decision also threatens the longestablished constitutional rights of resident aliens by 

extending a line of case permitting their exclusion 

from unprotected activities (like public employment) 

to uphold a statute that deprives them of enumerated 

rights (like freedom of speech). Indeed, the 

unavoidable import of the decision is that all resident 

aliens—including the 12 million permanent residents 

now living in the U.S.—could be banned from calling 

Members of Congress or attending a political rally. 
 11 

Because it arises on direct appeal, this Court must 

issue a decision on the merits of this case. Hicks, 422 

U.S. at 344. And legislatures and the public will 

watch that decision closely to see whether the Court 

meant what it said in Citizens United or will step 

back from the principles articulated in that seminal 

holding. Appellants submit that those principles, 

which require the as-applied invalidation of § 441e, 

are consistent with the Constitution and should be 

reaffirmed. But if the Court intends to retreat from 

that decision, it should do so only after plenary 

consideration of the merits. 

I. RESIDENT ALIENS ARE PROTECTED BY THE FIRST 

AMENDMENT AND THUS MAY SPEND MONEY TO 

EXPRESS THEIR POLITICAL VIEWS. 

As applied to resident aliens, § 441e violates the 

First Amendment. That conclusion follows from 

three unassailable premises: (1) Resident aliens are 

protected by the First Amendment (as the FEC and 

the court below acknowledged). (2) Under the First 

Amendment, the Government must satisfy strict 

scrutiny to justify a complete ban on political 

expenditures and contributions (as the district court 

properly assumed). (3) Section 441(e) does not 

remotely satisfy strict scrutiny. To the contrary, it 

uses the blunderbuss approach of a complete ban to 

effectuate a purpose fundamentally at odds with 

central tenets of the First Amendment. 

A. Text, History, and Precedent Confirm That 

Resident Aliens Are Entitled to the Freedom 

of Speech. 

Neither the FEC nor the district court suggested 

that Appellants, as lawful residents of the United 

States, fall outside the protections of the First 
 12 

Amendment. That concession is well-taken. The text 

and history of the Amendment, along with this 

Court’s precedents, confirm that resident aliens—

unlike those who live beyond the territorial reach of 

the Constitution—are entitled to the same freedom of 

speech as citizens. Those who live, work, and pay 

taxes in this country are entitled to speak freely here. 

“The [First] Amendment is written in terms of 

‘speech,’ not speakers. Its text offers no foothold for 

excluding any category of speaker . . . .” Citizens 

United, 130 S. Ct. at 929 (Scalia, J., concurring). The 

Constitution elsewhere does distinguish between 

“Persons” generally and “Citizens” in particular, 

including with respect to the rights to vote and run 

for office. See, e.g., U.S. Const. amend. XV (“The 

right of citizens of the United States to vote shall not 

be denied or abridged . . . .”); U.S. Const. art. I, § 2, cl. 

2 (“No Person shall be a Representative who shall not 

have . . . been seven Years a Citizen . . . . ”). But the 

First Amendment contains no such caveat. 

Nor does the history of the First Amendment cast 

any doubt on its application to noncitizens. Resident 

aliens routinely engaged in First Amendment activity 

at the Founding. See, e.g., Michael J. Wishnie, 

Immigrants and the Right to Petition, 78 N.Y.U. L. 

Rev. 667, 692-701 (2003). Moreover, resident aliens 

before and after the Founding were often permitted 

to vote; surely the Framers would not have intended 

to deny freedom of political speech to persons who 

were regularly entitled to cast ballots. See, e.g.,

Jamin B. Raskin, Legal Aliens, Local Citizens: The 

Historical, Constitutional and Theoretical Meanings 

of Alien Suffrage, 141 U. Pa. L. Rev. 1391 (1993). 
 13 

Caselaw is entirely in accord. While aliens have 

virtually no rights prior to their lawful entry, “aliens 

residing in the United States for a shorter or longer 

time, are entitled, so long as they are permitted by 

the government of the United States to remain in the 

country, to the safeguards of the Constitution.” Fong 

Yue Ting v. United States, 149 U.S. 698, 724 (1893). 

Those safeguards include the First Amendment. See, 

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

(applying First Amendment to overturn conviction 

based on resident alien’s speech). As later explained: 

The Bill of Rights is a futile authority for the 

alien seeking admission for the first time to 

these shores. But once an alien lawfully 

enters and resides in this country he becomes 

invested with the rights guaranteed by the 

Constitution to all people within our borders. 

Such rights include those protected by the 

First and the Fifth Amendments . . . . 

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

(1953) (quoting Bridges v. Wixon, 326 U.S. 135, 161 

(1945) (Murphy J., concurring)) (emphasis added) 

(internal quotation marks omitted). 

More recently, in United States v. VerdugoUrquidez, 494 U.S. 259 (1990), this Court reaffirmed 

that the First Amendment extends beyond citizens to 

“the People,” i.e., “persons who are part of a national 

community or who have otherwise developed 

sufficient connection with this country to be 

considered part of that community.” Id. at 265. 

Applying that standard, the Court described Bridges

as holding that “resident aliens have First 

Amendment rights.” Id. at 271 (citing Bridges, 326 

U.S. at 148) (emphasis added). 
 14 

In short, “[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 judgment). In the eyes of 

the First Amendment, resident aliens—unlike aliens 

who live overseas—are not “foreigners,” but members 

of “the People” protected by the Constitution. 

B. “Freedom of Speech” Embraces the Freedom 

To Contribute to Candidates and To Spend 

Money To Advocate for or Against Them. 

As this Court explained in Buckley v. Valeo, 424 

U.S. 1 (1976) (per curiam), the First Amendment 

protects political contributions and expenditures as 

core acts of expression and association. 

Limitations on political expenditures constitute 

direct restrictions on the right “to engage in protected 

political expression, restrictions that the First 

Amendment cannot tolerate.” Id. at 58-59. 

Expenditure limits, not to mention flat bans, must 

therefore “satisfy the exacting scrutiny applicable to 

limitations on core First Amendment rights of 

political expression,” i.e., strict scrutiny. Id. at 44-45; 

see also FEC v. Wisc. Right to Life, Inc., 551 U.S. 

449, 461 (2007) (plurality opinion). Applying strict 

scrutiny, this Court has “routinely struck down 

limitations on independent expenditures by 

candidates, other individuals, and groups.” FEC v. 

Colo. Republican Fed. Campaign Comm., 533 U.S. 

431, 441 (2001). The only line of cases upholding 

restrictions on independent political expenditures—

by corporations, based on Austin v. Michigan 

Chamber of Commerce, 494 U.S. 652 (1990)—was 

overruled in Citizens United, 130 S. Ct. at 913. 
 15 

Political contributions, too, lie at the core of the 

First Amendment as an act of political expression 

and association. Buckley, 424 U.S. at 23. While 

limits on the amounts of contributions are subject to 

less-than-strict (albeit heightened) scrutiny, the logic 

of the Court’s decisions dictates that flat bans must 

be subject to strict scrutiny. The rationale for 

Buckley’s reduced scrutiny for contribution limits is 

that, because “[a] contribution serves as a general 

expression of support for the candidate and his 

views,” the precise amount of the contribution is not 

crucial to the message. Id. at 21. Thus, “[a] 

limitation on the amount of money a person may give 

to a candidate . . . involves little direct restraint on 

his political communication, for it permits the 

symbolic expression of support evidenced by a 

contribution.” Id. (emphasis added). Such a 

rationale does not apply, however, to a total ban on 

contributions, which completely deprives an 

individual of the “fundamental First Amendment 

interests” in expressing support for his candidate of 

choice. Id. at 23. Rather, complete bans on political 

contributions, like restrictions on expenditures, 

reduce “the quantity of political speech.” Id. at 39.2

Accordingly, both elements of § 441e intrude on 

core First Amendment activity. Since resident aliens 

are members of the People protected by the First 

Amendment, § 441e’s ban on such activities is 

unconstitutional unless it satisfies strict scrutiny. 

Indeed, the district court so assumed. App.9a. 

 2 Justice Souter, writing for the Court in FEC v. Beaumont, 

did suggest that even a complete ban need only be “closely 

drawn,” but that suggestion was dicta in light of the conclusion 

that the plaintiff was “simply wrong in characterizing [the 

statute] as a complete ban.” 539 U.S. 146, 161-62 (2003). 
 16 

C. Section 441e Does Not Remotely Satisfy 

Strict Scrutiny. 

As the “most rigorous and exacting standard of 

constitutional review,” Miller v. Johnson, 515 U.S. 

900, 920 (1995), strict scrutiny demands a state 

interest that is truly compelling and, even then, a 

restriction of speech is not permitted where it is 

“plausible” that the interest could be furthered by a 

lesser imposition. United States v. Playboy Entm’t 

Grp., Inc., 529 U.S. 803, 813, 816 (2000). As a result, 

“[o]nly rarely are statutes sustained in the face of 

strict scrutiny.” Bernal v. Fainter, 467 U.S. 216, 219 

n.6 (1984). Proving that point, this Court has, to 

Appellants’ knowledge, upheld speech restrictions 

under strict scrutiny only twice: in Burson v. 

Freeman, 504 U.S. 191, 211 (1992) (plurality opinion) 

(holding that statute prohibiting campaigning within 

100 feet of polls was “rare case” in which strict 

scrutiny satisfied), and Holder v. Humanitarian Law 

Project, 130 S. Ct. 2705 (2010) (upholding, by 6-3 

vote, proscription of “material support” to terrorists). 

The contrast between this case, and Burson and 

Humanitarian Law Project, is striking. Burson

involved a restriction “as venerable a part of the 

American tradition as the secret ballot,” 504 U.S. at 

214 (Scalia, J., concurring in judgment), one that 

targeted a specific type of speech within a welldefined geographical area and a brief temporal 

period, in order to protect citizens’ ability to cast 

ballots “free from the taint of intimidation and 

fraud,” id. at 211 (majority opinion). Humanitarian 

Law Project considered a statute that incidentally 

embraced “a narrow category of speech,” and 

incorporated “narrowing definitions” and “limited 
 17 

exceptions,” in order to prevent conduct that would 

“facilitate more terrorist attacks”—an undisputed 

“urgent objective of the highest order.” 130 S. Ct. at 

2723-24, 2728. Section 441e imposes a complete ban 

on contributions and expenditures by all resident 

aliens in connection with all elections, and it does 

so—admittedly!—as a means to reduce the 

“influence” of a suspect class of speakers. Far from 

presenting the “rare case” in which strict scrutiny 

can be satisfied, Burson, 504 U.S. at 211, this law has 

every hallmark of unconstitutionality. 

As commentators have observed, the Government 

cannot satisfy strict scrutiny in this case. See, e.g., 

Richard L. Hasen, Citizens United and the Illusion of 

Coherence, 109 Mich. L. Rev. 581, 605-610 (2011). 

Section 441e would obviously be unconstitutional if 

applied to U.S. citizens, and nothing in the decision 

below justifies a different conclusion for applications 

to constitutionally protected noncitizens. 

1. Diminishing the “influence” of speech is 

the antithesis of a “compelling interest.” 

Accepting the FEC’s argument, the district court 

concluded that § 441e served the compelling interest 

of “preventing foreign influence over the U.S. political 

process.” App.13a. Since § 441e prohibits speech, the 

“influence” to be prevented must be that upon the 

American voting public, who may find themselves 

swayed on an issue by views expressed by resident 

aliens. Such a result must be avoided, in Congress’s 

view, because aliens’ “loyalties lie elsewhere.” 120 

Cong. Rec. 8783 (Mar. 28, 1974) (statement of Sen. 

Bentsen). Or, as the court put it, Congress 

reasonably determined that nonpermanent resident 

aliens “have primary loyalty to other national 
 18 

political communities, many of which have interests 

that compete with those of the United States.” 

App.19a. In short, resident aliens cannot be trusted, 

and § 441e ensures that gullible American voters will 

not be led astray by their views.3

Rather, the purportedly compelling interest was 

the Government’s desire to prevent “influence [on] 

how voters will cast their ballots.” App.14a. Far 

from being the answer to the constitutional problem 

with § 441e, however, Congress’s desire to exclude 

politically disfavored members of the People from the 

political debate due to concern that their unworthy 

“foreign” views might “influence” voters is the 

constitutional problem with § 441e. The “compelling 

interest” asserted by the Government is 

fundamentally inconsistent with the most central 

tenets of the First Amendment. 

The Constitution “creates an open marketplace 

where ideas, most especially political ideas, may 

compete without government interference.” N.Y. 

State Bd. of Elections v. Lopez Torres, 552 U.S. 196, 

208 (2008). That means that the Government has no 

right to decide whose views are entitled to be heard, 

considered, or weighed in the balance. In the realm 

of political speech, especially, “the legislature is 

 3 To be clear, in referring to foreign “influence,” the court was 

not talking about improper influence—i.e., corruption. 

Although eliminating that vice is a compelling interest, this 

Court has made clear that such concerns are to be addressed by 

setting limits on contributions (so they are not too large) and 

mandating disclosure (so the public can see if a candidate is 

beholden). See Buckley, 424 U.S. at 28; Citizens United, 130 S. 

Ct. at 908, 914. This is no doubt why the district court admitted 

that “the government’s anti-corruption interest” is “not the 

governmental interest at stake in this case.” App.14a. 
 19 

constitutionally disqualified from dictating the 

subjects about which persons may speak and the 

speakers who may address a public issue.” First 

Nat’l Bank of Boston v. Bellotti, 435 U.S. 765, 784-85 

(1978). It is voters who “are entrusted with the 

responsibility for judging and evaluating the relative 

merits of conflicting arguments,” and it is they who 

“may consider, in making their judgment, the source 

and credibility of the advocate.” Id. at 791-92. As 

this Court recently explained, any “intrusion by the 

government into the debate over who should govern 

goes to the heart of First Amendment values.” Az. 

Free Enterprise Club’s Freedom Club PAC v. 

Bennett, 131 S. Ct. 2806, 2826 (2011). 

Nor does it matter that the speech might succeed

in “influencing” the citizenry. “[T]hat advocacy may 

persuade the electorate is hardly a reason to 

suppress it: The Constitution ‘protects expression 

which is eloquent no less than that which is 

unconvincing.’” Bellotti, 435 U.S. at 791 (quoting 

Kingsley Int’l Pictures Corp. v. Regents, 360 U.S. 

684, 689 (1959)). As this Court reiterated just last 

Term, if speech is influential, that is only because 

listeners find it persuasive. But “the fear that speech 

might persuade provides no lawful basis for quieting 

it.” Sorrell v. IMS Health Inc., 131 S. Ct. 2653, 2670 

(2011). Whatever Congress may think, “[t]hose who 

won our independence had confidence in the power of 

free and fearless reasoning and communication of 

ideas to discover and spread political and economic 

truth.” Thornhill v. Alabama, 310 U.S. 88, 95 (1940). 

The “compelling interest” affirmed by the district 

court is thus fundamentally incompatible with the 

First Amendment. And this Court said so, less than 
 20 

two years ago, in Citizens United. There, the Court 

decried the ban on corporate spending as an attempt 

“to silence entities whose voices the Government 

deems to be suspect.” 130 S. Ct. at 898. The same is 

true here. There, the Court denied to the 

Government the “means [to] deprive the public of the 

right and privilege to determine for itself what 

speech and speakers are worthy of consideration.” Id. 

Yet it is just those determinations that § 441e 

embodies. There, the Court held that “restrictions 

distinguishing among different speakers, allowing 

speech by some but not others,” are “[p]rohibited.” 

Id. Section 441e is such a restriction. And there, the 

Court rejected the suggestion that these principles 

may be discarded if the disfavored speakers are 

suspected of having “interests [that] may conflict in 

fundamental respects with the interests of eligible 

voters,” id. at 930 (Stevens, J., concurring in part and 

dissenting in part). Yet the district court accepted an 

analogous argument here. 

The district court justified these departures from 

every proposition of Citizens United by relying on 

dicta from Justice Stevens’s dissent in that case, 

which it found to be a “telling and accurate indicator 

of whether the Supreme Court’s jurisprudence 

stands” on the question. App.16a. This is, frankly, 

mystifying. The Citizens United majority expressly 

refused to “reach the question” of § 441e’s 

constitutionality. 130 S. Ct. at 911 (majority 

opinion). And even Justice Stevens’s dissent only 

addressed § 441e in general, without considering the 

as-applied scenario presented by this case, i.e., the 

case of resident aliens. No Justice has so much as 

hinted that such an application of the statute would 

be constitutionally defensible. 
 21 

2. The Equal Protection Cases upon Which 

the District Court Relied Are Irrelevant. 

As should be evident from the above, in finding 

that § 441e served a compelling state interest, the 

district court did not rely on any authority applying 

the First Amendment. Instead, it drew from a series 

of Equal Protection cases the principle that 

noncitizens may, upon a showing of rational basis, be 

excluded from “participation” in “activities of 

democratic self-government,” like voting or holding 

office. App.13a. It then concluded that the 

Government must have a compelling interest in 

limiting that participation and thereby preventing 

the influence that it effects. Id. The Equal 

Protection cases providing the premise for that logic 

are inapposite, however, several times over. 

The Equal Protection cases cited by the court 

addressed claims by aliens who were not engaged in 

any constitutionally protected activity, but invoked 

principles of equal protection in seeking affirmative 

government support (employment or other benefits) 

on the same terms as U.S. citizens. See Cabell v. 

Chavez-Salido, 454 U.S. 432 (1982) (employment as 

probation officers); Ambach v. Norwick, 441 U.S. 68 

(1979) (employment as public school teachers); Foley 

v. Connelie, 435 U.S. 291 (1978) (employment as 

police officers); Mathews v. Diaz, 426 U.S. 67 (1976) 

(medical insurance); Sugarman v. Dougall, 413 U.S. 

634 (1973) (state civil-service employment). 

The district court read the cases as standing for 

the broader proposition that “foreign citizens may be 

denied certain rights and privileges that U.S. citizens 

possess,” App.11a, but there is an obvious difference 

between constitutional rights (like freedom of speech) 
 22 

and “rights” not protected by the Constitution (like 

the “right” to a public job). Justice Holmes once 

famously said that a plaintiff “may have a 

constitutional right to talk politics, but he has no 

constitutional right to be a policeman.” McAuliffe v. 

Mayor of New Bedford, 155 Mass. 216, 220 (1892). 

The district court flipped even that (now-discredited) 

logic on its head, effectively holding that because 

Appellants have no constitutional right to be 

policemen, they have no constitutional right to talk 

politics. That reasoning is plainly fallacious. 

The Government may exclude aliens from 

activities of “democratic self-government,” meaning 

(in context) the exercise of governmental authority. 

Aliens have no “right to govern.” Foley, 435 U.S. at 

297; see also Cabell, 454 U.S. at 439. But electionrelated speech has no direct legal effect; it affects 

government only indirectly, through its power to 

persuade. It is voters and government officials who 

participate in “democratic self-government.” One 

who engages in election advocacy is no more a 

participant in self-government than Adam Smith or 

Karl Marx if those authors’ works convinced a voter 

to support a candidate. Legally constitutive acts like 

voting or legislating cannot be compared to speech. 

The district court was unable to detect any “clear 

dichotomy” between speech and participation. 

App.17a. But this court has had no trouble 

distinguishing restrictions on “the mechanics of the 

electoral process,” from those restricting “pure 

speech.” McIntyre v. Ohio Elections Comm’n, 514 

U.S. 334, 345 (1995). Indeed, the Court did so last 

Term, in Nevada Commission on Ethics v. Carrigan, 

131 S. Ct. 2343 (2011), involving a recusal statute 
 23 

that prohibited legislators both from voting on 

certain measures and from participating in debate 

regarding them. The Court analyzed those two 

prohibitions differently, because “voting on a bill is 

not fairly analogized to . . . simply discussing that bill 

or expressing an opinion for or against it. The former 

is performing a governmental act . . . the latter is [an 

exercise of] personal First Amendment rights.” Id. at 

2351 n.5. For the same reasons, a statute excluding 

aliens from voting or holding public office is simply 

not comparable to a statute that forbids aliens to 

speak about politics. 

The “dichotomy” makes good sense. Political 

power is zero-sum. An alien’s vote dilutes the 

governing power of citizens, and an alien who holds 

public office exercises government authority that 

would otherwise have been vested in a citizen. By 

contrast, there is no analogous concern that aliens’ 

speech will drown out citizens’ speech; in the First 

Amendment arena, the governing constitutional 

principle is “more speech, not enforced silence.” 

Whitney v. California, 274 U.S. 357, 377 (1927) 

(Brandeis, J., concurring). One may think to 

distinguish political spending from “pure” speech, 

see, e.g., Oral Arg. Tr. 9 (suggestion by court that 

aliens’ spending would “dilute the contributions and 

expenditures of U.S. citizens”), but this Court has 

repudiated that distinction, “repeatedly reject[ing] 

the argument that the government has a compelling 

state interest in ‘leveling the playing field’ that can 

justify undue burdens” on political spending. Az. 

Free Enterprise, 131 S. Ct. at 2825; see also Buckley, 

424 U.S. at 56-57. 
 24 

Hence neither theory nor doctrine support the 

court’s claim that, because the Government “may bar 

foreign citizens from voting and serving as elected 

officers,” it “follows” that the Government may bar 

them from “seek[ing] to influence how voters will cast 

their ballots in the elections.” App.14a. The right to 

speak is not dependent on the right to decide the 

matter being debated. Put another way, the right to 

participate in the marketplace of ideas does not 

presuppose the right to make the ultimate purchase. 

That is why minors—who cannot vote or run for 

office—are constitutionally entitled to contribute to 

candidates, per a unanimous decision of this Court. 

See McConnell v. FEC, 540 U.S. 93, 231-32 (2003). It 

is why corporations—who likewise cannot vote or run 

for office, see Citizens United, 130 S. Ct. at 930 

(Stevens, J., concurring in part and dissenting in 

part) (“They cannot vote or run for office.”)—are 

constitutionally entitled to spend unlimited sums on 

express advocacy. See id. at 917 (majority opinion). 

And it is why the only circuit court to have 

considered the issue concluded that nonresidents of a 

State—despite their lack of entitlement to vote 

there—are constitutionally entitled to contribute to 

candidates running for elective office in the State. 

See Vannatta v. Keisling, 151 F.3d 1215, 1218 (9th 

Cir. 1998). 

The Constitution requires that voters “be free to 

obtain information from diverse sources in order to 

determine how to cast their votes,” Citizens United, 

130 S. Ct. at 899—and that includes members of the 

People, like Appellants and other resident aliens, 

who cannot themselves “participate” in activities of 

“democratic self-government.” 
 25 

3. Even if Congress had a “compelling 

interest” in reducing the “influence” of 

resident aliens’ speech, § 441e is not 

narrowly tailored to that end. 

While the most obvious deficiency in § 441e is its 

categorically impermissible purpose, the law does not 

even have the virtue of being “closely drawn”—let 

alone “narrowly tailored”—to its illegitimate end. 

The lines drawn by § 441e are at once underinclusive 

and overinclusive, and Congress in drawing them did 

not consider obvious, less-restrictive alternatives. 

First, the statute permits resident aliens to 

engage in lobbying activities, and to spend unlimited 

sums in connection with ballot initiatives, see FEC 

Advisory Op. 1984-62, 1 n.2; FEC Advisory Op. 1980-

95. If anything, such activities—which concern direct

implementation of policy—are even more vulnerable 

to “influence” by those who have no direct say on 

policy. Yet, when candidates are out of the picture, 

§ 441e tellingly gives resident aliens a green light. 

“Underinclusiveness raises serious doubts about 

whether the government is in fact pursuing the 

interest it invokes . . . .” Brown v. Entm’t Merchs. 

Ass’n, 131 S. Ct. 2729, 2740 (2011). 

The district court was unconvinced, reasoning 

that “Congress may proceed piecemeal in an area 

such as this.” App.20a. But it cited, for that claim, 

cases applying rational-basis review to government 

benefit programs. Id. (quoting, e.g., Buckley’s 

analysis of public financing scheme). It is blackletter law that “governments are entitled to attack 

problems piecemeal, save where their policies 

implicate rights so fundamental that strict scrutiny 

must be applied.” Zauderer v. Office of Disciplinary 
 26 

Counsel, 471 U.S. 626, 651 n.14 (1985) (emphasis 

added). The court also reasoned that “Congress could 

reasonably [have] conclude[d] that the risk of undue 

foreign influence is greater in the context of 

candidate elections than it is in the case of ballot 

initiatives.” App.20a. But the case it cited, Citizens 

Against Rent Control v. City of Berkeley, 454 U.S. 

290 (1981), is about the risk of corrupting candidates, 

id. at 298. If the Government’s “compelling interest” 

is preventing resident aliens’ “influence” on voters, it 

does not matter whether those voters are weighing 

candidates or legislation. 

Second, the statute carves out lawful permanent 

residents (“LPRs”). Yet LPRs, too, are “foreign” and 

have “primary loyalty to other national political 

communities.” App.19a. The legislative history 

reveals that Congress was aware of this gap between 

the statute’s purpose and its coverage: Senator 

Griffin, who supported the law, observed the oddity 

that the proposed amendment “permits contributions 

by those who have been admitted for permanent 

residence,” “even though they do not have the right to 

vote.” 120 Cong. Rec. 8784 (Mar. 28, 1974). But 

Congress nonetheless made no attempt to apply its 

logic consistently. 

The district court dismissed this, too, on the 

ground that “Congress may reasonably conclude” that 

LPRs “stand in a different relationship to the 

American political community” than other resident 

aliens, given their entitlement to reside in the U.S. 

indefinitely. App.19a. But the distinction evaporates 

as soon as one looks past statutory labels. Many 

“nonpermanent” residents are permitted to remain in 

the United States indefinitely, see supra n.1; or to 
 27 

apply for unlimited extensions (such as Canadian 

professionals like Appellant Bluman, 8 C.F.R. 

§ 214.6(h)(1)(iv)). And “permanent” residents need 

not live in the country forever; they may forfeit or 

abandon their LPR status. See, e.g., 8 C.F.R. § 299.1; 

Katebi v. Ashcroft, 396 F.3d 463, 466–67 (1st Cir. 

2005). Under rational-basis review, a court could 

permissibly defer to a legislative line distinguishing 

LPRs from functionally identical residents; under 

strict scrutiny, however, such underinclusion is fatal. 

Third, the statute is also overinclusive in multiple 

respects. While noncitizens have no constitutional 

right to vote, certain municipalities have extended 

that right to them. E.g., Takoma Park, Md., Town 

Charter Art. VI, § 601. Consequently, aliens residing 

in those jurisdictions may vote in local elections but 

are prohibited from donating to, or even spending 

money to advocate for, their chosen candidates. No 

system that permits such a bizarre result could be 

called “narrowly tailored” or even “closely drawn.” 

More generally, while the Constitution grants 

Congress the power to regulate federal elections, e.g., 

U.S. Const. art. I, § 4, it preserves “state control over 

the election process for state offices,” Tashjian v. 

Republican Party of Conn., 479 U.S. 208, 217 (1986). 

Section 441e’s blanket ban on speech about state and 

local elections thus exceeds any federal interest in 

regulating elections; indeed, it is not clear what 

enumerated power could justify a federal ban on 

purely local speech that a state has chosen to permit. 

In addition, the Government has conceded that 

the law bans even a donation to the Club for Growth, 

a § 501(c)(4) organization that engages occasionally, 

but not primarily, in political activity. App.6a-8a; see 
 28 

http://www.clubforgrowth.org/aboutus/?subsec=0&id=

17#M10. The district court apparently assumed that 

such contributions could be banned because they 

might indirectly support “advoca[cy] with respect to 

certain issues and candidates.” App.7a. But it is 

facially implausible to suggest that Appellant 

Steiman’s $100 donation to the Club for Growth (or a 

similar donation to the ACLU) would somehow cause 

that domestic organization to exact “foreign” 

influence on American voters. Section 441e thus 

bans Appellants from major categories of expressive 

activity that have no impact on the Government’s 

purported interest in sheltering federal elections 

from foreign views. Yet the district court simply 

ignored these fatal instances of overinclusion. 

Fourth, and finally, § 441e cannot survive unless 

Congress first tried—or at least considered—“more 

tailored approaches” to solving the alleged problem. 

McConnell, 540 U.S. at 232. Congress had an 

obvious alternative here: special disclosure 

requirements for alien donors or advocates. Indeed, 

FARA itself employs this approach by requiring that 

“political propaganda” by “foreign agents” carry a 

statement disclosing its foreign source. 22 U.S.C. 

§ 611 et seq. As this Court held, such a requirement 

is consistent with the First Amendment because it 

“d[oes] not prohibit, edit, or restrain the distribution 

of advocacy materials in an ostensible effort to 

protect the public from conversion, confusion, or 

deceit.” Meese v. Keene, 481 U.S. 465, 480 (1987). 

Rather, “[b]y compelling some disclosure of 

information and permitting more, [disclosure 

requirements] recognize[] that the best remedy for 

misleading or inaccurate speech . . . is fair, truthful, 

and accurate speech.” Id. at 481. Yet, while 
 29 

Congress recognized that disclosure is a sufficient 

antidote to full-blown foreign propaganda, it ignored 

this alternative in the context of political spending by 

resident aliens, imposing instead a blanket ban in 

order to “protect the public from conversion, 

confusion, or deceit.” Id. at 480. The district court 

simply ignored this failing as well. 

Section 441e, and the district court’s opinion 

upholding it, make a mockery of every aspect of strict 

scrutiny. 

II. THE DISTRICT COURT’S OPINION SETS DANGEROUS 

PRECEDENT ON CAMPAIGN FINANCE REGULATION, 

THE FIRST AMENDMENT, AND THE CONSTITUTIONAL 

RIGHTS OF RESIDENT ALIENS. 

That the district court erred is more than enough 

to warrant this Court’s plenary consideration. After 

all, any “substantial question” merits such review. 

Hicks, 422 U.S. at 344. There are, however, further 

reasons why the Court’s full-fledged consideration is 

needed. As Justice Jackson once wrote about another 

decision to uphold an infringement of fundamental 

rights under strict scrutiny, “once a judicial opinion 

rationalizes” such action “to show that it conforms to 

the Constitution,” the court “has validated the 

principle,” which then “lies about like a loaded 

weapon ready for the hand of any authority that can 

bring forward a plausible claim.” Korematsu v. 

United States, 323 U.S. 214, 246 (1944) (Jackson, J., 

dissenting). The decision below sanctions not one 

such principle, but a host of them, with significance 

well beyond this case and even campaign finance law. 

Any affirmance by this Court of that decision will 

“validate[]” those principles. 
 30 

A. The District Court’s Precedent Undermines 

the Basic Logic of This Court’s Campaign 

Finance Jurisprudence. 

The bedrock principles of this Court’s campaign 

finance jurisprudence are that political expenditures 

constitute core First Amendment activity; that 

speaker-based restrictions are prohibited; and that 

independent expenditure bans are presumptively 

prohibited, and certainly cannot be used to “level the 

playing field.” The district court’s precedent 

undermines each of these, and its reasoning provides 

a roadmap for recalcitrant legislatures intent on 

enacting a new generation of campaign finance 

restrictions. It must be nipped in the bud. 

1. At the most fundamental level, the court’s 

suggestion that political spending may be uniquely 

subject to regulation is a direct repudiation of 

Buckley. As this Court there explained, it “ha[d] 

never suggested that the dependence of a 

communication on the expenditure of money operates 

itself to introduce a nonspeech element or to reduce 

the exacting scrutiny required by the First 

Amendment.” 424 U.S. at 16. Yet the district court 

suggested that its reasoning would extended only to 

restrictions on aliens’ political speech involving the 

expenditure of money, thus treating political speech 

financed by dollars as constitutionally unique. 

App.22a; see also Oral Arg. Tr. 15 (agreeing that 

Appellants have “right to speak on a soap box” but 

asking why “it’s critical to hear from the[ir] dollars,” 

e.g., “in an advertisement”). This bifurcation of 

political speech from political spending is the 

theoretical launching pad for every future attempt to 

limit the right to the latter. 
 31 

2. The district court’s precedent goes further: By 

holding that there exists a “compelling interest” in 

preventing the “influence” of disfavored speakers—

due to their dubious motives or questionable 

loyalty—the court constructed a doctrinal hook that 

could justify nearly any restriction on campaign 

spending. A State could bar expenditures by 

teachers’ unions, plaintiffs’ lawyers, or evangelical 

groups, since the “undue influence” of these special 

interests has long been decried. And the purity of 

their motives, too, could “reasonably” be doubted. 

3. The district court’s precedent offers another 

way for legislatures—assisted, no doubt, by the proregulatory campaign-finance professoriate—to 

circumvent Buckley. As its opinion held, it “follows” 

from resident aliens’ inability to vote that Congress 

may prohibit them from “seek[ing] to influence how 

voters will cast their ballots.” App.14a. On the 

strength of that precedent, every State so inclined 

could now prohibit contributions or expenditures 

financed by out-of-state entities (including groups 

like the Sierra Club or the Club for Growth, 

headquartered elsewhere). The Ninth Circuit 

invalidated such a restriction in Vannatta, 151 F.3d 

at 1218, but on the premise, rejected by the district 

court below, that the right to speak does not flow 

from the right to vote. Given the ubiquity of such 

cross-jurisdictional speech, a mere handful of these 

restrictions would fundamentally alter the course of 

modern American politics. See, e.g., Brian C. 

Mooney, Outside Donations Buoyed Brown, Boston 

Globe, Feb. 24, 2010 (“In the last 19 days of the race, 

nearly 70 percent of the 12,773 contributors who gave 

more than $200 to the [Scott] Brown campaign were 

from outside Massachusetts . . . .”). The impact 
 32 

would be particularly potent in the District of 

Columbia: Because residents of that city have no 

congressional representation, the right to engage in 

federal political fundraising or advocacy in the 

Nation’s capital could be effectively eliminated. 

4. Perhaps even more significant than the 

doctrinal hooks provided by the court’s opinion would 

be the signal sent by its unexplained affirmance. 

Every court—and more importantly, every 

legislature—in the country would know that, 

whatever this Court said in Citizens United, it did 

not truly mean it: Bans on independent expenditures 

can survive strict scrutiny, and are not off-limits. 

Upholding an independent-expenditure restriction for 

the first time since Austin would invite a new open 

season on political spending rights. 

B. The District Court’s Precedent Turns Core 

First Amendment Principles on Their Heads. 

The district court’s holdings also subvert First 

Amendment jurisprudence generally. 

1. The notion that the Government could have a 

“compelling interest” in reducing the “influence” of 

disfavored speech, App.17a, is remarkable. As this 

Court explained last Term when it rejected an 

argument that speech could be restricted due to its 

“strong influence” over doctors’ prescribing practices: 

“That the State finds expression too persuasive does 

not permit it to quiet the speech or to burden its 

messengers.” Sorrell, 131 S. Ct. at 2671. If 

“influence-prevention” is a “compelling interest” that 

justifies content-based restrictions on speech, the 

Government could presumably shut down talk radio, 

or require the airing of competing views, as a means 
 33 

to prevent the “undue influence” over voters 

exercised by certain prominent pundits; regulate 

sermons by imams, to limit their “influence” over 

impressionable young congregants; or prohibit 

homophobic remarks, to diminish the “influence” of 

bigots. The court’s recognition of this novel, vague, 

unbounded “compelling interest” in preventing the 

“influence” of speech creates a new defense for every 

State, municipality, school board, or public employer 

trying to silence disfavored speakers. 

 2. The problem is only exacerbated by the district 

court’s holding that the Government may premise its 

speech restrictions on speculation about the speaker’s 

“loyalty” to the country or “stake” in the debate. 

App.19a. That suggestion is equally foreign to the 

First Amendment, under which “the general rule” is 

that “the audience, not the government, assess[es] 

the value of the information presented,” in light of its 

content and its source. Edenfield v. Fane, 507 U.S. 

761, 767 (1993). Can the Government now prohibit 

Communists from speaking, because they are 

insufficiently loyal? May commercial speech 

restrictions be justified based on supposition that 

advertising merchants have the dubious motive of 

economic gain? The decision of the court below offers 

a “loaded weapon” for innumerable attempts to 

engage in previously-prohibited censorship. 

3. Likewise for the district court’s holding that if 

one cannot “participate” in a decision, one has no 

right to seek to influence the decision-maker. 

App.13a. As this Court’s cases have recognized, 

decision-makers need the benefit of public debate; 

speech serves “to supply the public need for 

information and education with respect to the 
 34 

significant issues of the times.” Thornhill, 310 U.S. 

at 102. Yet, under the district court’s precedent, any 

State could, among other things, criminalize all 

lobbying activity. After all, only legislators may 

“participate” in legislative decision-making; and “it 

follows” that neither lobbyists nor their constituentclients may try to influence their votes. 

4. The decision below likewise casts into doubt 

the (until now) well-accepted tailoring requirements 

of strict First Amendment scrutiny. By importing 

rational-basis rules into strict-scrutiny analysis—

e.g., accepting the dramatic underinclusiveness of 

§ 441e because “Congress may proceed piecemeal,” 

and uncritically deferring to conclusions Congress 

could “reasonably” have made, App.19a-20a—the 

district court loosened the restraints of strict scrutiny 

beyond recognition. Were this Court to affirm, it 

would invite any court so inclined to rubber-stamp 

restrictions on fundamental rights while purporting 

to apply the “most rigorous and exacting standard of 

constitutional review.” Miller, 515 U.S. at 920. 

C. The District Court’s Precedent Imperils the 

Constitutional Rights of Resident Aliens. 

The district court’s opinion also threatens the 

long-established rights of all resident aliens. 

1. Although § 441e forbids only political 

spending, the district court’s reasoning necessarily 

encompasses ordinary soapbox advocacy. Buckley’s 

core holding is that political expenditures and nonmonetary advocacy stand on the same constitutional 

footing. See 424 U.S. at 16. Thus, resident aliens 

could—in light of the district court’s decision—be 

prohibited from writing editorials criticizing a 
 35 

candidate for office; from making phone calls to 

support a campaign; or even from expressing their 

views about political candidates with co-workers. All 

of those forms of advocacy are, like expenditures, 

intended “to influence how voters will cast their 

ballots,” App.14a, and therefore may be criminalized. 

2. The implications go yet further. Even if a 

resident alien’s speech does not relate specifically to 

an election, or attempt to influence how voters cast 

their ballots, the district court’s precedent permits 

that speech to be proscribed if it constitutes 

“participation” in “activities of American democratic 

self-government.” App.13a. The court never defined 

that vague phrase, and its scope remains somewhat 

mysterious. But if it includes advocacy about an 

election, then it surely also includes engaging in 

issue advocacy, lobbying government officials, 

attending a protest outside the White House, calling 

a Senator’s office to object to legislation, or signing a 

petition condemning government action. Those 

activities, which directly advocate regarding the 

output of democratic government, are at least as 

much a “part of the overall process of democratic selfgovernment,” App.14a, as indirect attempts to affect 

policy decisions via the election of representatives 

who eventually make them. And, if so, noncitizens 

can apparently be barred from those activities, too, 

without offending the Constitution. 

So, although the court purported to accept the 

long-established proposition that resident aliens have 

full rights under the First Amendment, its reasoning 

carves out the core from those rights, affirming 

aliens’ freedom to create fetish videos, United States 

v. Stevens, 130 S. Ct. 1577 (2010), engage in hate 
 36 

speech, R.A.V. v. City of St. Paul, 505 U.S. 377 

(1992), and distribute virtual child pornography, 

Ashcroft v. Free Speech Coalition, 535 U.S. 234 

(2002), while allowing censorship of political speech. 

3. Although § 441e does not currently apply to 

LPRs, the court’s rationale would equally validate 

such a prohibition (or, as explained above, any 

restriction on political speech) as applied to them. 

Indeed, the very cases on which the court relied in 

constructing its (flawed) holding involved LPRs. See

Cabell, 454 U.S. at 434; Foley, 435 U.S. at 292; 

Sugarman, 413 U.S. at 645. And so, on the court’s 

interpretation of those cases, because LPRs may be 

barred from acts of “democratic self-government,” 

their political speech may constitutionally be 

criminalized. This is hardly a hypothetical worry. 

The House of Representatives has in the past gone so 

far as to adopt proposals to extend § 441e to LPRs. 

See H. Amdt. 453 to H.R. 417 (106th Cong.); 148 

Cong. Rec. H448 (Feb. 13, 2002). Those proposals are 

liable to resurface at any time. 

While the district court protested that its decision 

should not be read as addressing the constitutionality 

of a ban on LPRs’ campaign speech, App.22a, there is 

no principled way to read the opinion as doing 

anything else. Its precedent thus threatens the 

constitutional rights not only of refugees, asylees, 

and other nonpermanent residents like Appellants, 

but also of the more than 12 million LPRs currently 

residing in the United States. See Nancy Rytina, 

Estimates of the Legal Permanent Resident 

Population in 2009 (Office of Immigration Statistics, 

Dep’t of Homeland Security, Nov. 2010). 
 37 

CONCLUSION 

The Court should note probable jurisdiction and 

set this case for oral argument. 

 Respectfully submitted, 

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

September 1, 2011 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

APPENDIX 

 

 

 

 
 1a 

APPENDIX A 

IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

Benjamin Bluman and 

Asenath Steiman, 

 Plaintiffs,

v. 

Federal Election 

Commission, 

 

Defendant. 

Civil No. 10-1766 

(BMK)(RMU)(RMC) 

(Three Judge Court) 

[Filed: August 8, 2011] 

Before: KAVANAUGH, Circuit Judge; URBINA, 

District Judge; and COLLYER, District Judge. 

MEMORANDUM OPINION 

KAVANAUGH, Circuit Judge: 

Plaintiffs are foreign citizens who temporarily live 

and work in the United States. They are neither U.S. 

citizens nor lawful permanent residents; rather, they 

are lawfully in the United States on temporary work 

visas. Although they are not U.S. citizens and are in 

this country only temporarily, plaintiffs want to 

participate in the U.S. campaign process. They seek 

to donate money to candidates in U.S. federal and 
 2a 

state elections, to contribute to national political 

parties and outside political groups, and to make 

expenditures expressly advocating for and against 

the election of candidates in U.S. elections. Plaintiffs 

are barred from doing so, however, by federal statute. 

See 2 U.S.C. § 441e(a). 

In this suit, plaintiffs argue that the federal ban 

on their proposed activities is unconstitutional. 

Plaintiffs contend, in particular, that foreign citizens 

lawfully resident in the United States have a right 

under the First Amendment to the United States 

Constitution to contribute to candidates and political 

parties and to make express-advocacy expenditures. 

We respect the force of plaintiffs’ arguments, as ably 

advanced by plaintiffs’ counsel. Under the relevant 

Supreme Court precedents, however, we must 

disagree with plaintiffs’ submission. The Supreme 

Court has long held that the government (federal, 

state, and local) may exclude foreign citizens from 

activities that are part of democratic self-government 

in the United States. For example, the Supreme 

Court has ruled that the government may bar aliens 

from voting, serving as jurors, working as police or 

probation officers, or teaching at public schools. 

Under those precedents, the federal ban at issue here 

readily passes constitutional muster. We therefore 

grant the FEC’s motion to dismiss plaintiffs’ 

complaint under Federal Rule of Civil Procedure 

12(b)(6), and we deny plaintiffs’ motion for summary 

judgment.1

 1 In this opinion, we follow Supreme Court practice and use 

the terms “foreign citizen” and “alien” interchangeably to refer 

to individuals who are not citizens of the United States. As we 

use them here, those terms do not include individuals who are 
 3a 

LEGAL BACKGROUND 

As political campaigns grew more expensive in the 

latter half of the 20th Century, especially with the 

advent of costly television advertising, money became 

more important to the campaign process - in terms of 

both contributions to candidates and political parties 

and expenditures advocating for or against 

candidates. As money became more important to the 

election process, concern grew that foreign entities 

and citizens might try to influence the outcome of 

U.S. elections. In 1966, Congress sought to limit 

foreign influence over American elections by 

prohibiting agents of foreign governments and 

entities from making contributions to candidates. See 

Pub. L. No. 89-486, § 8, 80 Stat. 244, 248-49 (1966). 

In 1974, Congress expanded that ban and barred 

contributions to candidates from all “foreign 

nationals,” defined as all foreign citizens except 

lawful permanent residents of the United States. See

Federal Election Campaign Act Amendments of 1974, 

Pub. L. No. 93-443, § 101 (d), 88 Stat. 1263, 1267. 

But those restrictions did not eliminate the 

possibility of foreign citizens influencing American 

elections by, for example, soft-money donations to 

political parties as opposed to direct contributions to 

(continued...) 

dual citizens of a foreign country and the United States. The 

term “foreign national” is a statutory term of art and has a 

narrower scope: It covers foreign citizens except for lawful 

permanent residents of the United States. See 2 U.S.C. 

§ 441e(b). 
 4a 

candidates. Activities by foreign citizens in the 1996 

election cycle sparked public controversy and an 

extensive investigation by the Senate Committee on 

Governmental Affairs. The Committee found that 

foreign citizens had used soft-money contributions to 

political parties to essentially buy access to American 

political officials. See S. REP. No. 105-167, at 781-

2710, 4619-5925 (1998). It also found that the 

Chinese government had made an effort to “influence 

U.S. policies and elections through, among other 

means, financing election campaigns.” Id. at 47; see 

also id. at 2501-12. 

In response, Congress eventually passed and 

President George W. Bush signed legislation that, 

among many other things, strengthened the 

prohibition on foreign financial involvement in 

American elections. See Bipartisan Campaign 

Reform Act of 2002, Pub. L. No. 107-155, § 303, 116 

Stat. 81, 96. This new Act expanded the ban on 

foreign nationals’ financial influence on elections by 

banning foreign nationals both from making 

expenditures and from making contributions to 

political parties, thus supplementing the pre-existing 

ban on foreign nationals making contributions to 

candidates. 

The relevant provision of the statute as amended 

in 2002 reads: 

(a) Prohibition 

 

It shall be unlawful for- 

(1) a foreign national, directly or indirectly, 

to make- 
 5a 

(A) a contribution or donation of 

money or other thing of value, or to 

make an express or implied promise to 

make a contribution or donation, in 

connection with a Federal, State, or 

local election; 

(B) a contribution or donation to a 

committee of a political party; or 

(C) an expenditure, independent 

expenditure, or disbursement for an 

electioneering communication (within 

the meaning of section 434(1)(3) of this 

title); or 

(2) a person to solicit, accept, or receive a 

contribution or donation described in 

subparagraph (A) or (B) of paragraph (1) 

from a foreign national. 

2 U.S.C. § 441 e(a).2 The statute continues to define 

“foreign national” to include all foreign citizens 

 2 The statute as amended defines “contribution” as “any gift, 

subscription, loan, advance, or deposit of money or anything of 

value made by any person for the purpose of influencing any 

election for Federal office” or “the payment by any person of 

compensation for the personal services of another person which 

are rendered to a political committee without charge for any 

purpose.” 2 U.S.C.§ 431 (8)(A). The statute as amended defines 

“expenditure” as “any purchase, payment, distribution, loan, 

advance, deposit, or gift of money or anything of value, made by 

any person for the purpose of influencing any election for 

Federal office” or any “written contract, promise, or agreement 

to make an expenditure.” Id. § 431(9)(A). An “independent 

expenditure” is “an expenditure by a person ... expressly 

advocating the election or defeat of a clearly identified 

candidate” that is not made in coordination with that candidate. 

Id. § 431(17). 
 6a 

except those who have been admitted as lawful 

permanent residents. Id. § 44Ie(b). 

As relevant here, we interpret the statute to bar 

foreign nationals - that is, all foreign citizens except 

those who have been admitted as lawful permanent 

residents of the United States - from contributing to 

candidates or political parties; from making 

expenditures to expressly advocate the election or 

defeat of a political candidate; and from making 

donations to outside groups when those donations in 

turn would be used to make contributions to 

candidates or parties or to finance express-advocacy 

expenditures. See generally FEC v. Wisconsin Right 

to Life, Inc., 551 U.S. 449 (2007); Emily’s List v. FEC, 

581 F.3d 1 (D.C. Cir. 2009). This statute, as we 

interpret it, does not bar foreign nationals from issue 

advocacy - that is, speech that does not expressly 

advocate the election or defeat of a specific candidate. 

The line between prohibited express-advocacy 

expenditures and permitted issue-advocacy 

expenditures for purposes of this statute is the line 

drawn by the Supreme Court in Wisconsin Right to 

Life: An express-advocacy expenditure is one that 

funds “express campaign speech” or its “functional 

equivalent.” 551 U.S. at 456 (controlling opinion of 

Roberts, C.J.). An advertisement is the “functional 

equivalent” of express advocacy if it “is susceptible of 

no reasonable interpretation other than as an appeal 

to vote for or against a specific candidate.” Id. at 469-

70. 
 7a 

FACTUAL AND PROCEDURAL BACKGROUND 

 

The plaintiffs in this suit - Benjamin Bluman and 

Asenath Steiman - are foreign citizens who live and 

work in the United States on temporary visas. 

Bluman is a Canadian citizen who has lawfully 

resided in the United States since November 2009 on 

a temporary work visa. From September 2006 to 

June 2009, he lawfully resided in the United States 

on a temporary student visa while attending law 

school. His current visa will allow him to stay in the 

country until November 2012, at which time he plans 

to apply for a second three-year term. He is an 

associate at a law firm in New York City. 

Bluman wants to contribute to three candidates: 

Representative Jay Inslee of Washington; Diane 

Savino, a New York state senator; and President 

Obama. He also wants to print flyers supporting 

President Obama’s reelection and to distribute them 

in Central Park. 

Steiman is a dual citizen of Canada and Israel. 

She has a temporary visa authorizing her to live and 

work in the United States for a period of three years, 

through June 2012, but that term could be extended 

for up to seven years. She is a medical resident at a 

hospital in New York. 

Steiman wants to contribute money to Senator 

Tom Coburn; a yet-to-be-determined candidate for 

the Republican nomination for President in 2012; the 

National Republican Senatorial Committee; and the 

Club for Growth, an independent organization that 

advocates with respect to certain issues and 

candidates. 
 8a 

All of plaintiffs’ desired activities are barred by 2 

U.S.C. § 441e(a) as amended in 2002. 

Plaintiffs filed this complaint alleging that the 

statutory bar on their proposed activities violates the 

First Amendment to the United States Constitution. 

The Federal Election Commission moved to dismiss 

the suit for failure to state a claim. See FED. R. CIY. 

P. 12(b)(6). Plaintiffs moved for summary judgment. 

DISCUSSION 

 

I. Standard of Scrutiny 

Political contributions and expenditures are acts 

of political expression and association protected by 

the First Amendment. According to plaintiffs, 

regulation of those activities therefore must meet 

First Amendment strict scrutiny standards. See 

Buckley v. Valeo, 424 U.S. 1, 25 (1976). The FEC 

counters that § 441e(a) manifests a congressional 

judgment on a matter of foreign affairs and national 

security, and is thus subject to deferential rational 

basis review. We think the question is somewhat 

more complex than either side suggests, not only 

because the statute implicates both the First 

Amendment and national security, but also because 

it includes both a limit on contributions and a limit 

on expenditures, which have traditionally been 

subject to different levels of First Amendment 

scrutiny. See McConnell v. FEC, 540 U.S. 93, 134-37 

(2003); Buckley, 424 U.S. at 20-23, 44-45. But the 

debate over the level of scrutiny is ultimately not 

decisive here because we conclude that § 441e(a) 

passes muster even under strict scrutiny. Therefore, 
 9a 

we may assume for the sake of argument that § 

441e(a)’s ban on political contributions and 

expenditures by foreign nationals is subject to strict 

scrutiny. 

In order to pass muster under strict scrutiny, a 

statute must be narrowly tailored to advance a 

compelling government interest. FEC v. Wisconsin 

Right to Life, Inc., 551 U.S. 449, 464 (2007) 

(controlling opinion of Roberts, C.J.). Plaintiffs 

contend that § 44Ie(a) cannot satisfy that exacting 

standard. We disagree. 

II. The Merits 

Over the last four decades, the First Amendment 

issues raised by campaign finance laws have been the 

subject of great debates involving all three branches 

of the national government. See, e.g., Citizens United 

v. FEC, 130 S. Ct. 876 (2010); Buckley v. Valeo, 424 

U.S. 1 (1976). This case does not implicate those 

debates. Rather, this case raises a preliminary and 

foundational question about the definition of the 

American political community and, in particular, the 

role of foreign citizens in the U.S. electoral process. 

We know from more than a century of Supreme 

Court case law that foreign citizens in the United 

States enjoy many of the same constitutional rights 

that U.S. citizens do. For example, aliens are 

generally entitled to the same rights as U.S. citizens 

in the criminal process, among several other areas. 

See, e.g., United States v. Verdugo-Urquidez, 494 

U.S. 259, 271 (1990) (aliens protected by the 

Constitution “when they have come within the 

territory of the United States and developed 
 10a 

substantial connections with this country”); Plyler v. 

Doe, 457 U.S. 202, 210-12 (1982) (illegal aliens 

protected by Equal Protection Clause in the context 

of public education); Mathews v. Diaz, 426 U.S. 67, 77 

(1976) (Fifth and Fourteenth Amendments protect all 

aliens within the jurisdiction of the United States, 

even those “whose presence in this country is 

unlawful, involuntary, or transitory,” from 

“deprivation of life, liberty, or property without due 

process of law”); Sugarman v. Dougall, 413 U.S. 634, 

64 1-42 (1973) (aliens protected by Equal Protection 

Clause from exclusion from the state civil service); In 

re Griffiths, 413 U.S. 717, 719-20, 722 (1973) 

(resident alien protected by the Fourteenth 

Amendment in the context of admission to the bar); 

Graham v. Richardson, 403 U.S. 365, 371-77 (1971) 

(lawfully admitted resident aliens protected by Equal 

Protection Clause in the context of state welfare 

laws); Shaughnessy v. United States ex rel. Mezei, 

345 U.S. 206, 212 (1953) (illegal aliens already in the 

United States entitled to due process before 

deportation); Kwong Hai Chew v. Colding, 344 U.S. 

590, 596-98 (1953) (lawful permanent resident alien 

protected by the Fifth Amendment in the context of 

expulsion and deportation); Bridges v. Wixon, 326 

U.S. 135, 148 (1945) (resident aliens protected by the 

First Amendment in the context of deportation); 

Russian Volunteer Fleet v. United States, 282 U.S. 

481, 489 (1931) (.Just Compensation Clause of Fifth 

Amendment applies to foreign corporation); Home 

Ins. Co. v. Dick, 281 U.S. 397, 411 (1930) (protection 

of the Fourteenth Amendment extends to aliens in 

the context of contract dispute); Truax v. Raich, 239 

U.S. 33, 39-40 (1915) (Equal Protection Clause 

protects resident aliens in the “conduct of ordinary 
 11a 

private enterprise”); Wong Wing v. United States, 

163 U.S. 228, 238 (1896) (illegal alien protected by 

the Fifth and Sixth Amendments from 

“imprisonment at hard labor” without trial by jury 

before deportation); Fong Yue Ting v. United States, 

]49 U.S. 698, 724 (1893) (resident aliens protected by 

the Constitution “in regard to their rights of person 

and of property, and to their civil and criminal 

responsibility”); Yick Wo v. Hopkins, 118 U.S. 356, 

368-74 (1886) (resident aliens protected by the 

Fourteenth Amendment from discriminatory 

enforcement of public safety ordinances). 

But we also know from Supreme Court case law 

that foreign citizens may be denied certain rights and 

privileges that U.S. citizens possess. For example, the 

Court has ruled that government may bar foreign 

citizens from voting, serving as jurors, working as 

police or probation officers, or working as public 

school teachers. See Cabell v. Chavez-Salido, 454 

U.S. 432 (1982) (upholding a law barring foreign 

citizens from working as probation officers); Ambach 

v. Norwick, 441 U.S. 68 (1979) (upholding a law 

barring foreign citizens from teaching in public 

schools unless they intend to apply for citizenship); 

Foley v. Connelie, 435 U.S. 291 (1978) (upholding a 

law barring foreign citizens from serving as police 

officers); Perkins v. Smith, 370 F. Supp. 134 (D. Md. 

1974), aff’d 426 U.S. 913 (1976) (upholding a law 

barring foreign citizens from serving as jurors); 

Sugarman, 413 U.S. at 648-49 (“citizenship is a 

permissible criterion for limiting” the “right to vote or 

to hold high public office”). The Court has further 

indicated that aliens’ First Amendment rights might 

be less robust than those of citizens in certain 

discrete areas. See Harisiades v. Shaughnessy, 342 
 12a 

U.S. 580, 591-92 (1952) (First Amendment does not 

protect aliens from deportation because of 

membership in the Communist Party). Beyond that, 

the Constitution itself of course bars foreign citizens 

from holding certain offices. See U.S. CONST. art. I, 

§§ 2, 3; U.S. CONST. art. II, § I. 

In those many decisions, the Supreme Court has 

drawn a fairly clear line: The government may 

exclude foreign citizens from activities “intimately 

related to the process of democratic self-government.” 

Bernal v. Fainter, 467 U.S. 216, 220 (1984); see also 

Gregory v. Ashcroft, 501 U.S. 452, 462 (1991); Cabell, 

454 U.S. at 439-40. As the Court has written, “a 

State’s historical power to exclude aliens from 

participation in its democratic political institutions 

[is] part of the sovereign’s obligation to preserve the 

basic conception of a political community.” Foley, 435 

U.S. at 295-96 (internal quotation marks and citation 

omitted). In other words, the government may 

reserve “participation in its democratic political 

institutions” for citizens of this country. Id. When 

reviewing a statute barring foreign citizens from 

serving as probation officers, the Court explained 

that the “exclusion of aliens from basic governmental 

processes is not a deficiency in the democratic system 

but a necessary consequence of the community’s 

process of political self-definition.” Cabell, 454 U.S. at 

439 (emphasis added). Upholding a statute barring 

aliens from teaching in public schools, the Court 

reasoned that the “distinction between citizens and 

aliens, though ordinarily irrelevant to private 

activity, is fundamental to the definition and 

government of a State. . . . It is because of this special 

significance of citizenship that governmental entities, 

when exercising the functions of government, have 
 13a 

wider latitude in limiting the participation of 

noncitizens.” Ambach, 441 U.S. at 75 (emphasis 

added). And in upholding a ban on aliens serving as 

police officers, the Court stated that, “although we 

extend to aliens the right to education and public 

welfare, along with the ability to earn a livelihood 

and engage in licensed professions, the right to 

govern is reserved to citizens.” Foley, 435 U.S. at 297. 

We read these cases to set forth a straightforward 

principle: It is fundamental to the definition of our 

national political community that foreign citizens do 

not have a constitutional right to participate in, and 

thus may be excluded from, activities of democratic 

self-government. It follows, therefore, that the United 

States has a compelling interest for purposes of First 

Amendment analysis in limiting the participation of 

foreign citizens in activities of American democratic 

self-government, and in thereby preventing foreign 

influence over the U.S. political process. 

Applying the Supreme Court’s precedents, the 

question here is whether political contributions and 

express-advocacy expenditures - including donations 

to outside groups that in turn make contributions or 

express-advocacy expenditures, see Emily’s List v. 

FEC, 581 F.3d 1 (D.C. Cir. 2009) - constitute part of 

the process of democratic self-government. In our 

view, the answer to that question is straightforward: 

Political contributions and express-advocacy 

expenditures are an integral aspect of the process by 

which Americans elect officials to federal, state, and 

local government offices. Political contributions and 

express-advocacy expenditures finance 

advertisements, get-out-the-vote drives, rallies, 

candidate speeches, and the myriad other activities 
 14a 

by which candidates appeal to potential voters. See 

generally Buckley, 424 U.S. at 14. We think it 

evident that those campaign activities are part of the 

overall process of democratic self-government. 

Moreover, it is undisputed that the government may 

bar foreign citizens from voting and serving as 

elected officers. See Sugarman, 413 U.S. at 647-49. It 

follows that the government may bar foreign citizens 

(at least those who are not lawful permanent 

residents of the United States) from participating in 

the campaign process that seeks to influence how 

voters will cast their ballots in the elections. Those 

limitations on the activities of foreign citizens are of a 

piece and are all “part of the sovereign’s obligation to 

preserve the basic conception of a political 

community.” Foley, 435 U.S. at 295-96 (internal 

quotation marks omitted).3

Our task here is made simpler because the 

Supreme Court has deemed the activities of 

democratic self-government to include functions as 

unrelated to the electoral process as teaching in 

public schools and serving as police and probation 

officers. See Cabell, 454 U.S. at 444-47; Ambach, 441 

U.S. at 75-81; Foley, 435 U.S. at 297-300. In our view, 

spending money to influence voters and finance 

campaigns is at least as (and probably far more) 

 3 We note that plaintiffs have not attempted to argue as a 

backup that they may have a right to make expenditures even if 

they do not have a right to make contributions. We think that a 

wise approach. The constitutional distinction between 

contributions and expenditures is based on the government’s 

anticorruption interest. See Buckley, 424 U.S. at 45-47. But that 

is not the governmental interest at stake in this case. Here, the 

government’s interest is in preventing foreign influence over 

U.S. elections. 
 15a 

closely related to democratic self-government than 

serving as a probation officer or public schoolteacher. 

Thus, our conclusion here follows almost a fortiori

from those cases. 

For their part, plaintiffs concede that the 

government may bar foreign citizens abroad from 

making contributions or express-advocacy 

expenditures in U.S. elections. They thus concede 

that the government may make distinctions based on 

the foreign identity of the speaker when the speaker 

is abroad. Plaintiffs contend, however, that the 

government may not impose the same restrictions on 

foreign citizens who are lawfully present in the 

United States on a temporary visa. We disagree. 

Although the Supreme Court has never squarely 

addressed the issue presented in this case, the only 

four justices who spoke to the question in Citizens 

United indicated that the government obviously has 

the power to bar foreign nationals from making 

campaign contributions and expenditures. Justice 

Stevens wrote for those four justices: 

The Government routinely places special 

restrictions on the speech rights of students, 

prisoners, members of the Armed Forces, 

foreigners, and its own employees.... Although 

we have not reviewed them directly, we have 

never cast doubt on laws that place special 

restrictions on campaign spending by foreign 

nationals. See, e.g., 2 U.S.C. § 441 e(a)(l).... 

The Court all but confesses that a categorical 

approach to speaker identity is untenable 

when it acknowledges that Congress might be 

allowed to take measures aimed at “preventing 

foreign individuals or associations from 
 16a 

influencing our Nation’s political process.” 

Ante, at 911. Such measures have been a part 

of U.S. campaign finance law for many years. 

The notion that Congress might lack the 

authority to distinguish foreigners from 

citizens in the regulation of electioneering 

would certainly have surprised the Framers, 

whose obsession with foreign influence derived 

from a fear that foreign powers and 

individuals had no basic investment in the 

well-being of the country. 

Citizens United, 130 S. Ct. at 945, 947, 948 n.51 

(Stevens, J., joined by Ginsburg, Breyer, and 

Sotomayor, JJ., concurring in part and dissenting in 

part) (internal quotation marks and footnotes 

omitted). For Justices Stevens, Ginsburg, Breyer, and 

Sotomayor, it was plain - indeed, beyond rational 

debate - that the government may bar foreign 

contributions and expenditures. To be sure, the other 

five Justices did not have occasion to expressly 

address this issue in Citizens United, but the 

majority’s analysis in Citizens United certainly was 

not in conflict with Justice Stevens’s conclusion on 

this particular question about foreign influence. 

Indeed, in our view, the majority opinion in Citizens 

United is entirely consistent with a ban on foreign 

contributions and expenditures. And we find the force 

of Justice Stevens’s statement to be a telling and 

accurate indicator of where the Supreme Court’s 

jurisprudence stands on the question of foreign 

contributions and expenditures. 

Plaintiffs try in various ways to overcome the 

relevant Supreme Court precedents. First, they 

acknowledge that they do not have the right to vote 

in U.S. elections, but they contend that the right to 
 17a 

speak about elections is different from the right to 

participate in elections. But in this case, that is not a 

clear dichotomy. When an expressive act is directly 

targeted at influencing the outcome of an election, it 

is both speech and participation in democratic selfgovernment. Spending money to contribute to a 

candidate or party or to expressly advocate for or 

against the election of a political candidate is 

participating in the process of democratic selfgovernment. Notably, § 441 e(a) as we interpret it, 

see supra pp. 4-5, does not restrain foreign nationals 

from speaking out about issues or spending money to 

advocate their views about issues. It restrains them 

only from a certain form of expressive activity closely 

tied to the voting process providing money for a 

candidate or political party or spending money in 

order to expressly advocate for or against the election 

of a candidate. See First Nat’l Bank of Boston v, 

Bellotti, 435 U.S. 765, 788 n.26 (1978) (“speak[ing] on 

issues of general public interest” is a “quite different 

context” from “participation in a political campaign 

for election to public office”). 

Plaintiffs further contend that § 441e(a)’s 

restrictions on contributions and expenditures cannot 

be justified by the longstanding ban on foreign 

citizens voting in U.S. elections because the statutory 

restrictions here are not tied to the right to vote. But 

that argument misunderstands the compelling 

interest that is at stake. The statute does not serve a 

compelling interest in limiting the participation of 

non-voters in the activities of democratic selfgovernment; it serves the compelling interest of 

limiting the participation of non-Americans in the 

activities of democratic self-government. A statute 

that excludes foreign nationals from political 
 18a 

spending is therefore tailored to achieve that 

compelling interest. 

Plaintiffs also point out that many groups of 

people who are not entitled to vote may nonetheless 

make contributions and expenditures related to 

elections - for example, minors, American 

corporations, and citizens of states or municipalities 

other than the state or municipality of the elective 

office. But minors, American corporations, and 

citizens of other states and municipalities are all 

members of the American political community. By 

contrast, the Supreme Court has said that “[a]liens 

are by definition those outside of this community.” 

Cabell, 454 U.S. at 439-40. The compelling interest 

that justifies Congress in restraining foreign 

nationals’ participation in American elections - 

namely, preventing foreign influence over the U.S. 

government - does not apply equally to minors, 

corporations, and citizens of other states and 

municipalities. It is long established that the 

government’s legislative and regulatory prerogatives 

are at their apex in matters pertaining to alienage. 

See Mathews, 426 U.S. at 79-80; Harisiades, 342 U.S. 

at 588-89. It is hardly surprising, therefore, that a 

law that is justified as applied to aliens may not be 

justified as applied to citizens of the United States, or 

entities made up of such citizens. Thus, the fact that 

those other non-voting groups of U.S. citizens are free 

to contribute and make expenditures does not mean 

that foreign nationals are similarly entitled. 

Plaintiffs argue that the statute, as a measure 

designed to limit foreign influence over American 

self-government, is underinclusive and not narrowly 

tailored because it does not prohibit contributions 
 19a 

and expenditures by lawful permanent residents. But 

as Members of Congress stated when rejecting a 

proposal to include lawful permanent residents in 

§ 441e(a)’s prohibition, see, e.g., 148 Cong. Rec. H448-

H450 (Feb. 13, 2002) (statements of Reps. Mink, 

Menendez, Reyes, Morella, and Solis), Congress may 

reasonably conclude that lawful permanent residents 

of the United States stand in a different relationship 

to the American political community than other 

foreign citizens do. Lawful permanent residents have 

a long-term stake in the flourishing of American 

society, whereas temporary resident foreign citizens 

by definition have only a short-term interest in the 

national community. Indeed, at oral argument in this 

case, plaintiffs’ counsel could not say that the two 

plaintiffs here ever want to become U.S. citizens, or 

to apply for lawful permanent residency. See Tr. of 

Oral Arg. at 19. Temporary resident foreign citizens 

by definition have primary loyalty to other national 

political communities, many of which have interests 

that compete with those of the United States. Apart 

from that, lawful permanent residents share 

important rights and obligations with citizens; for 

example, lawful permanent residents may - and do, 

in large numbers - serve in the United States 

military. In those two ways - their indefinite 

residence in the United States and their eligibility for 

military service - lawful permanent residents can be 

viewed as more similar to citizens than they are to 

temporary visitors, and thus Congress’s decision to 

exclude them from the ban on foreign nationals’ 

contributions and expenditures does not render the 

statute underinclusive. In fact, one might argue that 

Congress’s carve-out for lawful permanent residents 

makes the statute more narrowly tailored to the 
 20a 

precise interest that it is designed to serve - namely, 

minimizing foreign participation in and influence 

over American self-government. 

Plaintiffs further contend that the statute is 

underinclusive and not narrowly tailored because it 

permits foreign nationals to make contributions and 

expenditures related to ballot initiatives. But as the 

Supreme Court has stated, Congress may proceed 

piecemeal in an area such as this involving 

distinctions between citizens and aliens. See Buckley, 

424 U.S. at 105 (noting the “familiar principles that a 

statute is not invalid under the Constitution because 

it might have gone farther than it did, that a 

legislature need not strike at all evils at the same 

time, and that reform may take one step at a time, 

addressing itself to the phase of the problem which 

seems most acute to the legislative mind”) (internal 

quotations marks and citations omitted); Mathews, 

426 U.S. at 82-84 (“Since it is obvious that Congress 

has no constitutional duty to provide all aliens with 

the welfare benefits provided to citizens, the party 

challenging the constitutionality of the particular line 

Congress has drawn has the burden of advancing 

principled reasoning that will at once invalidate that 

line and yet tolerate a different line separating some 

aliens from others.... When this kind of policy choice 

must be made, we are especially reluctant to question 

the exercise of congressional judgment.”). Moreover, 

Congress could reasonably conclude that the risk of 

undue foreign influence is greater in the context of 

candidate elections than it is in the case of ballot 

initiatives. Cf. Citizens Against Rent 

Control/Coalition for Fair Housing v. City of 

Berkeley, 454 U.S. 290, 299 (1981). Congress’s 

determination that foreign contributions and 
 21a 

expenditures pose a greater risk in relation to 

candidate elections than such activities pose in 

relation to ballot initiatives is a sensible one and, in 

our view, does not undermine the validity of the 

statutory ban on contributions and expenditures. 

Plaintiffs also suggest that Congress’s ban on 

foreign participation in the campaign process is the 

product of jingoistic sentiment in the United States 

Congress and thus should not be accepted by the 

courts. To begin with, Congress’s most recent 

legislation on this issue was based on a factual record 

collected in the aftermath of the 1996 elections and 

Congress’s genuine concern about foreign inf1uenccs 

on U.S. elections. It bears mentioning, moreover, that 

plaintiffs’ home countries - Israel and Canada - and 

many other democratic countries impose similar 

restraints on political spending by foreign citizens. 

See, e.g., Canada Elections Act, 2000 S.C., c. 9 §§ 358, 

404(1); Knesset Election Law (Consolidated Version), 

5729-1969, 23 LSI 110 (5729- 1968/69), as amended; 

see also Tr. of Oral Arg. at 56-57. To be sure, the 

United States protects speech and expression more 

than most (perhaps more than all) foreign countries 

do, and U.S. courts should not be bound by foreign 

nations’ practices when analyzing constitutional 

issues such as this. But as the examples of Canada 

and Israel help show, distinguishing citizens from 

non-citizens in this context is hardly unusual or 

deserving of scorn; rather, it is part of a common 

international understanding of the meaning of 

sovereignty and shared concern about foreign 

influence over elections. 
 22a 

For all of those reasons, we are ultimately 

unpersuaded by plaintiffs’ submission.4 That said, we 

note three important limits to our holding in this 

case. First, we do not here decide whether Congress 

could constitutionally extend the current statutory 

ban to lawful permanent residents who have a more 

significant attachment to the United States than the 

temporary resident plaintiffs in this case. Any such 

extension would raise substantial questions not 

raised by this case. Second, we do not decide whether 

Congress could prohibit foreign nationals from 

engaging in speech other than contributions to 

candidates and parties, express-advocacy 

expenditures, and donations to outside groups to be 

used for contributions to candidates and parties and 

express-advocacy expenditures. Plaintiffs express 

concern, for example, that a ruling against them here 

would green-light Congress to impose bans on 

lobbying by aliens temporarily in this country. They 

similarly express concern that Congress might bar 

them from issue advocacy and speaking out on issues 

of public policy. Our holding does not address such 

questions, and our holding should not be read to 

support such bans. Third, we caution the government 

that seeking criminal penalties for violations of this 

provision - which requires that the defendant act 

“willfully,” see 2 U.S.C. §§ 437g(a)(5)(C), 437g(d)(I)(A) 

- will require proof of the defendant’s knowledge of 

the law. See United States v. Moore, 612 F.3d 698, 

 4 Our holding means, of course, that foreign corporations are 

likewise barred from making contributions and expenditures 

prohibited by 2 U.S.C. § 441e(a). Because this case concerns 

individuals, we have no occasion to analyze the circumstances 

under which a corporation may be considered a foreign

corporation for purposes of First Amendment analysis. 
 23a 

702-04 (D.C. Cir. 2010) (Kavanaugh, J., concurring); 

see also Staples v. United States, 511 U.S. 600 

(1994). There are many aliens in this country who no 

doubt are unaware of the statutory ban on foreign 

expenditures, in particular. 

CONCLUSION 

 

We grant the FEC’s motion to dismiss, and we 

deny plaintiffs’ motion for summary judgment. 

This the 8th day of August, 2011. 

/s/ BRETT M. KAVANAUGH

United States Circuit Judge 

/s/ RICARDO M. URBINA

United States District Judge 

/s/ ROSEMARY M. COLLYER

United States District Judge 

 
24a 

APPENDIX B 

IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

Benjamin Bluman and 

Asenath Steiman, 

 Plaintiffs,

v. 

Federal Election 

Commission, 

 

Defendant. 

Civil No. 10-1766 

(BMK)(RMU)(RMC) 

(Three Judge Court) 

[Filed: August 8, 2011] 

ORDER AND FINAL JUDGMENT 

 

 For the reasons set forth in the Memorandum 

Opinion, it is this 8th day of August, 2011, hereby 

 ORDERED that Defendant Federal Election 

Commission's Motion To Dismiss [#15] is GRANTED; 

it is further 

 ORDERED that Plaintiffs' Motion for 

Summary Judgment [#19] is DENIED; and it is 

further 
 25a 

 ORDERED that final judgment be entered for 

the defendant. 

 SO ORDERED. 

/s/ BRETT M. KAVANAUGH

United States Circuit Judge 

/s/ RICARDO M. URBINA

United States District Judge 

/s/ ROSEMARY M. COLLYER

United States District Judge 
26a 

APPENDIX C 

IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

Benjamin Bluman, et al., 

 Plaintiffs,

v. 

Federal Election 

Commission, 

 

Defendant. 

Civil Action 

No. 10-1766 

RMU-BMK-RMC 

(Three Judge Court) 

NOTICE OF APPEAL 

[Filed: August 12, 2011] 

NOTICE OF APPEAL 

 

 Pursuant to § 403(a)(3) of the Bipartisan 

Campaign Reform Act of 2002, Pub. L. No. 107-155, 

116 Stat. 81, 114 (“BCRA”), notice is given that 

Plaintiffs, Benjamin Bluman and Dr. Asenath 

Steiman, hereby appeal to the Supreme Court of the 

United States from the Order of the three-judge 

Court entered in this action on August 8, 2011, 

dismissing Plaintiffs’ Complaint and entering final 

judgment against them [Dkt. 36]. This notice is 

timely submitted within ten days of entry of the 

aforementioned Order. See BCRA § 403(a)(3). 
 27a 

Dated: August 12, 2011 

Respectfully submitted, 

/s/ Jacob M. Roth

Jacob M. Roth (D.C. Bar No. 995090) 

JONES DAY 

51 Louisiana Avenue N.W. 

Washington, DC 20001 

Telephone: (202) 879-3939 

Facsimile: (202) 626-1700 

yroth@jonesday.com 

Counsel for Plaintiffs 
28a 

APPENDIX D 

IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

Benjamin Bluman, et al., 

 Plaintiffs,

v. 

Federal Election 

Commission, 

 

Defendant. 

Civil Action 

No. 10-1766 

RMU-BMK-RMC 

(Three Judge Court) 

CERTIFICATE OF 

SERVICE 

 

[Filed: August 15, 2011] 

 

CERTIFICATE OF SERVICE 

 

 This is to certify that on August 12, 2011, I 

caused a copy of Plaintiffs’ Notice of Appeal [Dkt. No. 

38] to be served by e-mail through this Court’s 

Electronic Filing System, as well as by first-class 

mail, on the following persons: 

Adav Noti (anoti@fec.gov) 

David Brett Kolker (dkolker@fec.gov) 

Kevin Deeley (kdeeley@fec.gov) 

Steve Nicholas Hajjar (shajjar@fec.gov) 

Federal Election Commission 
 29a 

999 E Street NW 

Washington, DC 20436 

 I further certify that on August 12, 2011, I 

caused a copy of Plaintiffs’ Notice of Appeal to be 

served by first-class mail on the following: 

Solicitor General of the United States 

Room 5614, Department of Justice 

950 Pennsylvania Avenue NW 

Washington, DC 20530-0001 

Dated: August 15, 2011 

 /s/ Jacob M. Roth

Jacob M. Roth (D.C. Bar No. 995090) 

JONES DAY 

51 Louisiana Avenue N.W. 

Washington, DC 20001 

Telephone: (202) 879-3939 

Facsimile: (202) 626-1700 

yroth@jonesday.com 

Counsel for Plaintiff