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) 

REPLY MEMORANDUM 

REPLY MEMORANDUM IN SUPPORT OF 

PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT 

 

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

Warren D. Postman (D.C. Bar No. 995083) 

JONES DAY 

51 Louisiana Avenue N.W. 

Washington, DC 20001 

Telephone: (202) 879-3939 

Facsimile: (202) 626-1700 

yroth@jonesday.com 

wpostman@jonesday.com 

Counsel for Plaintiffs 

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TABLE OF CONTENTS 

Page 

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

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

ARGUMENT ................................................................................................................................. 3

I. The Commission’s Attempts To Evade Heightened Scrutiny Are Meritless. ................... 3

A. Political Speech Is Not a Form of “Democratic Self-Government” and 

Therefore Cannot Be Limited to Citizens. ............................................................. 5

B. The Commission’s Equal Protection Cases Say Nothing To Justify 

Uniquely Low Scrutiny for Restrictions on Aliens’ Political Speech. .................. 8

C. The Restrictions of the Alien Gag Law Are Subject to Heightened 

Scrutiny. ............................................................................................................... 10

II. The Commission’s Attempts To Satisfy Heightened Scrutiny Are Meritless. ................ 12

A. The Commission Expressly Disclaims a Series of Potential Rationales for 

the Alien Gag Law. .............................................................................................. 12

B. The Government’s Assertedly Compelling Interest in Preventing “Foreign 

Influence” Is Per Se Illegitimate Under the First Amendment. ........................... 14

C. The Alien Gag Law’s Blunderbuss Censorship Is Not Remotely Tailored 

to the Commission’s Asserted Interest. ............................................................... 17

III. The Commission Continues To Argue from Consequences That Do Not Follow 

from Plaintiffs’ Position. .................................................................................................. 21

CONCLUSION ............................................................................................................................ 24

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TABLE OF AUTHORITIES 

Page(s) 

CASES

Ambach v. Norwick, 

441 U.S. 68 (1979) .....................................................................................................................9 

American-Arab Anti-Discrimination Committee v. Reno, 

70 F.3d 1045 (9th Cir. 1995) .....................................................................................................3 

American-Arab Anti-Discrimination Committee v. Reno, 

119 F.3d 1367 (9th Cir. 1997), vacated by 525 U.S. 471 (1999) ..............................................3

Ashcroft v. Free Speech Coalition, 

535 U.S. 234 (2002) ...................................................................................................................7 

Bernal v. Fainter, 

467 U.S. 216 (1984) .................................................................................................................10 

Brandenburg v. Ohio, 

395 U.S. 444 (1969) (per curiam) ......................................................................................13, 14 

*Buckley v. Valeo, 

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

Cabell v. Chavez-Salido, 

454 U.S. 432 (1982) .................................................................................................................10 

Citizens Against Rent Control v. Berkeley, 

454 U.S. 290 (1981) ...........................................................................................................11, 20 

*Citizens United v. FEC, 

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

Davis v. FEC, 

554 U.S. 724 (2008) ...................................................................................................................6 

Emily’s List v. FEC, 

581 F.3d 1 (D.C. Cir. 2009) .....................................................................................................11 

FCC v. Pacifica Found., 

438 U.S. 726 (1978) ...................................................................................................................2 

FEC v. Beaumont, 

539 U.S. 146 (2003) .................................................................................................................11 

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

551 U.S. 449 (2007) (plurality opinion) ............................................................................11, 17 

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 iii

*First Nat’l Bank of Boston v. Bellotti, 

435 U.S. 765 (1978) .....................................................................................................15, 16, 20 

Florida Star v. BJF, 

491 U.S. 524 (1989) .................................................................................................................18 

Humanitarian Law Project v. Reno, 

205 F.3d 1130 (9th Cir. 2000) ...................................................................................................3 

Johnson v. De Grandy, 

512 U.S. 997 (1994) .................................................................................................................23 

Kwong Hai Chew v. Colding, 

344 U.S. 590 (1953) .................................................................................................................10 

McConnell v. FEC, 

540 U.S. 93 (2003) .....................................................................................................................8 

Moving Phones Partnership L.P. v. FCC, 

998 F.2d 1051 (D.C. Cir. 1993) .................................................................................................9 

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

552 U.S. 196 (2008) .................................................................................................................15 

NAACP v. Button, 

371 U.S. 415 (1963) .................................................................................................................18 

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

505 U.S. 377 (1992) ...................................................................................................................7 

Randall v. Sorrell, 

548 U.S. 230 (2006) (plurality opinion) ..................................................................................23 

Red Lion Broad. Co. v. FCC, 

395 U.S. 367 (1969) ...................................................................................................................9 

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

525 U.S. 471 (1999) .............................................................................................................3, 11 

Reynolds v. Sims, 

377 U.S. 533 (1964) ...............................................................................................................5, 6 

Ruggiero v. FCC, 

317 F.3d 239 (D.C. Cir. 2003) (en banc) ...................................................................................9 

Tashjian v. Republican Party of Conn., 

479 U.S. 208 (1986) .................................................................................................................18 

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 iv

Texas v. Johnson, 

491 U.S. 397 (1989) .................................................................................................................23 

Thornhill v. Alabama, 

310 U.S. 88 (1940) ...................................................................................................................16 

Tinker v. Des Moines Indep. Cmty. Sch. Dist., 

393 U.S. 503 (1969) .................................................................................................................23 

United States v. Barona, 

56 F.3d 1087 (9th Cir. 1995) ...................................................................................................22 

United States v. Esparza-Mendoza, 

265 F. Supp. 2d 1254 (D. Utah 2003) ......................................................................................22 

United States v. Guitterez, 

983 F. Supp. 905 (N.D. Cal. 1998) ..........................................................................................22 

United States v. Stevens, 

130 S. Ct. 1577 (2010) ...............................................................................................................7 

*United States v. Verdugo-Urquidez, 

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

United States v. Virginia, 

518 U.S. 515 (1996) ...........................................................................................................12, 14 

Vannatta v. Keisling, 

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

Whitney v. California, 

274 U.S. 357 (1927) ...................................................................................................................6 

CONSTITUTIONAL AUTHORITIES

U.S. Const. Amendment I ...................................................................................................... passim

U.S. Const. Amendment IV ...........................................................................................................22 

U.S. Const. Amendment XIV ....................................................................................................9, 17 

STATUTES

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

2 U.S.C. § 441f ..............................................................................................................................13 

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 v

REGULATIONS

11 C.F.R. § 100.29(b) ......................................................................................................................7 

11 C.F.R. § 110.20(e).......................................................................................................................7 

OTHER AUTHORITIES

120 Cong. Rec. 8783 (Mar. 28, 1974) ...........................................................................................19 

FEC Advisory Op. 1995-09 ...........................................................................................................11 

S. Rep. No. 105-167, available at http://www.fas.org/irp/congress/1998_rpt/sgo-sir/ 

1-12.htm ...................................................................................................................................19 

S. Rep. No. 105-167, available at http://www.fas.org/irp/congress/1998_rpt/sgo-sir/ 

4-7.htm .....................................................................................................................................19 

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INTRODUCTION

 In their initial memorandum [Dkt. No. 19 (“SJ”)], Plaintiffs explained that their case rests 

on two simple points of law. First, all lawful residents of the United States, including aliens, are 

protected by the First Amendment. (SJ 21-28) Second, the First Amendment guarantees the 

right to express one’s political views through contributions to candidates for elective office and 

independent expenditures to advocate for such candidates. (SJ 29-31) Consequently, the Alien 

Gag Law—to the extent that it prohibits lawful residents of the United States from so expressing 

their views—must satisfy heightened scrutiny, which it does not remotely do. (SJ 31-46) 

 In its opposition [Dkt. No. 30 (“Opp.”)], the Commission purports to accept the two legal 

premises underlying Plaintiffs’ argument. It concedes “that aliens in the United States have First 

Amendment rights.” (Opp. 22) And it (somewhat grudgingly) admits that the Supreme Court in 

Buckley v. Valeo, 424 U.S. 1 (1976) (per curiam), held that the First Amendment requires limits 

on political contributions to satisfy “intermediate scrutiny” and restrictions on independent 

expenditures to meet the “strict scrutiny” test. (Opp. 30, 32) The inevitable legal consequence 

of those premises is that the Alien Gag Law, as applied to lawful aliens residing in the United 

States, is subject to heightened scrutiny. But this the Commission stubbornly refuses to accept. 

 Instead, the Commission continues to urge application of a “rational basis” test—the 

lowest standard of constitutional scrutiny, one that applies to statutes that do not implicate any

enumerated constitutional right. (Opp. 18) Sure, the First Amendment protects aliens’ speech 

generally, the Commission concedes, but political spending is participation in “the democratic 

process of self-government” and so lacks constitutional protection. (Opp. 12, 22) This is a 

striking claim in light of the Supreme Court’s campaign finance jurisprudence. Because Buckley 

establishes that political spending stands on the same constitutional footing as other political 

speech, the Commission must be arguing that any speech by aliens about elections—whether in 

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an ad or on a soapbox—is participation in “self-government” and lacks ordinary First 

Amendment protection. (Alternatively, if the Commission’s position is that “soapbox” speech is 

more protected than paid-for speech, it is asking this Court to overrule Buckley.) 

 The Commission’s position on speech about “self-government” ignores the basic 

distinction between governing and speech; runs counter to both logic and precedent; and is 

incompatible with any plausible conception of the First Amendment. It is therefore not 

surprising that the only authority the Commission can muster is a set of Equal Protection cases 

holding that aliens have no right to hold public office or certain public employment, but saying 

nothing about restrictions on speech. Repetition of the phrase “democratic self-government,” a 

term drawn from those cases, is no basis for doing away with Plaintiffs’ core speech rights. 

 In its alternative argument that the Alien Gag Law satisfies heightened scrutiny, the 

Commission’s error is no less pernicious and no more defensible. The Commission cites, as the 

“compelling” interest justifying the restrictions, the need to “protect[] the American democratic 

system from foreign influence.” (Opp. 32) Although it refuses to unpack that loaded term, the 

intent is plain: The Government may restrict the constitutionally protected political speech of 

resident aliens because their views are less important, less meaningful, and less trustworthy than 

the speech of citizens, and might (gasp!) even convince the electorate to support a particular 

candidate. Put that way, the argument is clear—and clearly irreconcilable with the First 

Amendment, “[f]or it is a central tenet of the First Amendment that the government must remain 

neutral in the marketplace of ideas.” FCC v. Pacifica Found., 438 U.S. 726, 745-46 (1978) 

(opinion of Stevens, J.). The Commission is claiming the power not just to take sides in that 

marketplace, but to keep disfavored groups out. This is not a justification for the Alien Gag 

Law; it is a powerful demonstration of why it is unconstitutional. 

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Finally, the Commission attempts to bolster its “self-government” and “foreign 

influence” arguments by pointing to consequences that it claims would follow from recognizing 

Plaintiffs’ well-established rights to political speech. The Commission, however, is willfully 

over-reading Plaintiffs’ position. Recognizing the right to political speech of natural-person 

residents of the United States would in no way require the extension of those rights to foreign 

corporations or illegal aliens (Opp. 39-40), who are not part of “the people” as defined by United 

States v. Verdugo-Urquidez, 494 U.S. 259, 271-72 (1990). Obfuscation cannot conceal the only 

relevant questions in this case: Does the First Amendment protect the right of resident aliens to 

engage in political speech? Does the right to political speech include the right to political 

spending? And can the Government deny resident aliens this right in order to prevent “foreign” 

influence on the electorate? The answers are indisputable. 

ARGUMENT

I. The Commission’s Attempts To Evade Heightened Scrutiny Are Meritless. 

 Perhaps realizing that the Alien Gag Law cannot hope to survive any form of heightened 

scrutiny, the Commission devotes much of its brief to arguing for a “rational basis” standard of 

scrutiny. (Opp. 10-30) But it cannot offer any coherent rationale for invoking this relaxed 

standard. The Commission admits that resident aliens are protected by the First Amendment and 

thus generally enjoy the right to freedom of speech. (Opp. 18 n.3, 22)1

 And it also concedes that 

restrictions on political spending are generally subject to heightened scrutiny under the First 

Amendment. (Opp. 30, 32) Why then should the First Amendment activity of aliens protected 

by the First Amendment be treated any differently? 

 1

 The Commission, oddly, still attempts to distinguish the cases establishing that proposition (Opp. 22-24 & 

nn.4-5), but seeing as it agrees with the legal bottom-line, there is no need to further debate the point. The 

Commission is wrong, however, to fault Plaintiffs for citing American-Arab Anti-Discrimination Committee v. Reno, 

70 F.3d 1045 (9th Cir. 1995) (“AADC I”). (Opp. 23) The Supreme Court vacated only a subsequent opinion of the 

Ninth Circuit in that case, 119 F.3d 1367 (9th Cir. 1997), vacated, 525 U.S. 471, 476 (1999) (“It is the judgment and 

opinion in that appeal which is before us here.”), and the Ninth Circuit has continued to treat its initial AADC I

decision as good law, e.g., Humanitarian Law Project v. Reno, 205 F.3d 1130, 1133-34 (9th Cir. 2000). 

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 According to the Commission, political spending is a form of “democratic selfgovernment,” which can be denied to aliens without any meaningful constitutional scrutiny. 

Taking Buckley seriously, this is an extreme claim. In that case, the Government argued that 

spending limits “should be viewed as regulating conduct, not speech” and thus subject to reduced 

scrutiny. 424 U.S. at 16. The Court decisively rejected that approach: “[T]his Court has 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.” Id. That is, the fact that it takes money to engage in speech does not change its 

First Amendment nature or the protections it deserves.2

 Therefore, unless the Commission is asking this Court to overturn Buckley, its position 

must be that the Government may ban (subject only to rational basis review) any election-related 

speech by aliens. Yet the Commission provides virtually no authority to support this extreme 

claim, offering only a set of Equal Protection cases that use the phrase “democratic selfgovernment” in holding that aliens have no right to hold public office or certain government 

jobs. Plaintiffs do not dispute that aliens have no right to participate in government by voting, 

serving as public officials, or holding certain public employment—but the Commission never 

explains why quintessential First Amendment activity falls into the same category. Its arguments 

from assertion do not withstand scrutiny. Political speech is not by any stretch an act of 

“governing,” and the Commission’s attempt to conflate the two is inconsistent with both legal 

precedent and legal principle. 

 2

 The Commission’s apparent unwillingness to accept Buckley is evident elsewhere in its opposition, as 

well. For example, the Commission repeatedly observes that resident aliens remain permitted to speak out about 

issues, so long as they do not advocate for candidates. (Opp. 20, 29 n.6, 45-47) The very same was true of the 

restrictions in Buckley, but the Court there explained that “[a]dvocacy of the election or defeat of candidates for 

federal office is no less entitled to protection under the First Amendment than the discussion of political policy 

generally or advocacy of the passage or defeat of legislation.” 424 U.S. at 48. And the Commission devotes an 

entire section to the alleged content-neutrality of § 441e (Opp. 28-30), but the Alien Gag Law targets electionrelated speech exactly as the laws at issue in Buckley did, so this is no distinction either. 

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A. Political Speech Is Not a Form of “Democratic Self-Government” and 

Therefore Cannot Be Limited to Citizens. 

 Although it uses the phrase “self-government” or “self-governance” 27 times in its 

opposition, the Commission offers no definition of this concept. Nor does it cite a single case 

that applies it to uphold a limitation on First Amendment activity, as opposed to limitations on 

voting or holding government office. See Part I.B, infra. 

 Conceptually, however, the distinction between political speech and “self-government” is 

plain. When an individual engages in election-related speech, the propagation of his views has 

no direct legal effect. Rather, the only way that political speech actually affects government is 

indirectly through its power to persuade. Ultimately, it is still only voters and government 

officials who participate in democratic self-government and exercise sovereign functions. One 

who engages in election advocacy is no more a participant in self-government than Adam Smith 

or Karl Marx would be if those authors’ works convinced a voter to support a certain candidate 

or persuaded a politician to adopt a certain policy. By contrast, an individual’s vote has direct 

and independent legal force in determining who forms government; his signature on a 

referendum petition has direct and independent legal force in determining which policy matters 

are placed before the electorate; and his use of the powers of his government office (if he holds 

one) has direct and independent legal force in creating and executing the law. These sorts of 

legally constitutive acts cannot be compared to mere speech. 

 There is also a compelling logical reason to distinguish the two. Political power, whether 

in the form of voting or holding government office, is zero-sum. An alien’s vote necessarily 

dilutes the governing power of citizens, reducing their relative authority. Cf. Reynolds v. Sims, 

377 U.S. 533, 554-56 (1964). Similarly, if an alien holds public office or is hired as a civil 

servant, then he is necessarily exercising government authority that would otherwise have been 

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vested in a citizen. By contrast, there is no analogous concern that one person’s speech—

including in the form of political spending—will dilute another’s; to the contrary, “restrict[ing] 

the speech of some elements of our society in order to enhance the relative voice of others is 

wholly foreign to the First Amendment.” Buckley, 424 U.S. at 48-49. In the realm of speech, the 

governing constitutional principle is “more speech, not enforced silence.” Whitney v. California, 

274 U.S. 357, 377 (1927) (Brandeis, J., concurring). 

 Moreover, if the Commission’s classification of election-related speech as “selfgovernment” were valid, Congress and the States would have far greater latitude to regulate 

political speech than the law permits—along at least three different axes. 

 First, if political spending really constituted participation in “self-government,” Congress 

would be permitted to “level the playing field” among citizens, just as it may—indeed, must—

with respect to the right to vote, by drawing voting districts to prevent “dilution” of some 

citizens’ political power. See Reynolds, 377 U.S. at 554-56, 567-69. Yet the Supreme Court has 

long rejected the argument that the Government may use spending limits to “equaliz[e] the 

relative ability of individuals and groups to influence the outcome of elections.” Buckley, 424 

U.S. at 48. It has done so because political spending is speech, and there would be “ominous 

implications” to allowing “Congress to arrogate the voters’ authority to evaluate the strengths of 

candidates competing for office.” Davis v. FEC, 554 U.S. 724, 742 (2008). 

 Second, if Congress could prohibit aliens from election-related speech because it is a 

form of participation in self-government, Congress could equally ban aliens from engaging in 

policy advocacy. The Commission repeatedly tells us that so-called “issue advocacy” remains 

open to aliens (Opp. 20, 45), but (under its theory) this would be so only as a matter of grace.3

 

 3

 In fact, Plaintiffs are not really free to engage in issue advocacy, even as a matter of statutory grace; under 

the Commission’s own definition of an “electioneering communication,” issue advocacy that merely mentions a 

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After all, the enactment of laws by a democratic legislature is the ultimate expression of 

“democratic self-government.” Likewise, while the Commission states that Plaintiffs “can 

attempt to contact elected representatives” (Opp. 20), it does not explain the counterintuitive 

conclusion that non-citizens may be prohibited from lobbying voters but not from lobbying 

legislators. Thus, the Commission has offered no principle to limit its theory to election-related 

speech; rather, its position would necessarily allow the censorship of all political speech by 

aliens. That would turn the First Amendment on its head, applying rational basis scrutiny to 

restrictions on political advocacy (the constitutional core), while subjecting to strict scrutiny laws 

that restrict aliens’ freedom to create animal fetish videos, United States v. Stevens, 130 S. Ct. 

1577 (2010), engage in hate speech, R.A.V. v. St. Paul, 505 U.S. 377 (1992), or distribute virtual 

child pornography, Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002). 

 Third, on the Commission’s (unexplained) assumption that political speech is a form of 

“self-government,” numerous other groups excluded from the democratic process would equally 

lack political speech rights. But, as illustrated by Plaintiffs in their opening brief, that is not so. 

For example, residents of State A are foreclosed from participating in the “self-government” of 

State B—for the very same reason that the Commission says resident aliens cannot so 

participate, i.e., “because they lack sufficient ties” to the jurisdiction (Opp. 50)—yet the Ninth 

Circuit correctly held that a law forbidding cross-jurisdictional spending was subject to (and 

failed) heightened scrutiny under the First Amendment. Vannatta v. Keisling, 151 F.3d 1215, 

1218 (9th Cir. 1998). The Commission’s brief does not even cite, let alone distinguish, that 

decision. Minors, too, are lawfully excluded from “participating in self-government” through 

(continued...) 

candidate’s name within 60 days of a general election or 30 days of a primary election could subject the alien 

advocate to criminal punishment under § 441e. See 11 C.F.R. §§ 100.29(b)(3)(i); 110.20(e). 

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voting, holding office, serving on juries, etc. The Commission says this is because they are 

“immature” (Opp. 50), and that is true. The point, however, is that although their immaturity 

provides a basis for excluding them from self-government, the Supreme Court nonetheless held 

that they cannot be forbidden from engaging in political speech. McConnell v. FEC, 540 U.S. 

93, 231-32 (2003). Similarly, domestic corporations cannot participate in “self-government,” yet 

the Supreme Court rejected the argument that, consequently, they could be foreclosed from 

engaging in political speech through independent advocacy for candidates. Citizens United v. 

FEC, 130 S. Ct. 876, 916 (2010). The Commission’s response to these examples of minors and 

corporations—that these “do not even involve aliens” (Opp. 50)—misses the point. The 

illustrations show that many who (like aliens) can be excluded from direct participation in “selfgovernment” are nonetheless constitutionally entitled to express their political views, including 

by advocating for candidates. This refutes the Commission’s central premise, that electionrelated speech is indistinguishable from “democratic participation” (Opp. 49). 

B. The Commission’s Equal Protection Cases Say Nothing To Justify Uniquely 

Low Scrutiny for Restrictions on Aliens’ Political Speech. 

Plaintiffs’ opposition to the Commission’s motion to dismiss analyzed the fourteen cases 

on which the Commission initially relied in arguing for a rational basis standard of scrutiny. (SJ 

50-52) Plaintiffs showed that ten of these fourteen cases did not arise under the First 

Amendment at all; and the remaining four refuted the Commission’s argument that a uniquely 

low standard governed First Amendment claims by resident aliens. Now, the Commission has 

retreated, claiming only that two of its cases “involved First Amendment activity.” (Opp. 19) 

But even this claim is demonstrably false: one of these cases affirmatively rejected the argument 

that the alien had engaged in First Amendment activity. And the other involved a claim to 

government benefits, not free speech, and did not even mention the First Amendment. 

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In Ambach v. Norwick, 441 U.S. 68 (1979), the question was “whether a State, 

consistently with the Equal Protection Clause of the Fourteenth Amendment, may refuse to 

employ [aliens] as elementary and secondary school teachers.” Id. at 69 (emphasis added). The 

Commission identifies a footnote addressing a frivolous claim that the restriction of an alien’s 

“freedom” to teach in public schools was “contrary to principles of diversity of thought and 

academic freedom embodied in the First Amendment.” Id. at 79 n.10. But the Court did not 

hold that the plaintiff’s alienage justified a restriction on speech activity. Rather, the Court 

rejected the argument that First Amendment activity was implicated at all, holding that “the 

opportunity to teach in the State’s schools . . . is not a liberty that is accorded constitutional 

protection” by that Amendment. Id.

In Moving Phones Partnership L.P. v. FCC, 998 F.2d 1051 (D.C. Cir. 1993), the court 

first held that “the Commission reasonably interpreted the [Communications] Act” and that its 

“dismissal of appellants’ [license] applications was reasonable.” Id. at 1053. The court also 

addressed a solitary constitutional claim, rejecting a contention that the FCC’s “classifications 

based on alienage” violated Equal Protection principles. Id. at 1056. The Commission says the 

case dealt with “paradigmatic speech activity.” (Opp. 20) Not so. The plaintiff in Moving 

Phones never raised a First Amendment claim, and neither the phrase “First Amendment” nor 

the word “speech” appears anywhere in the decision. This is not surprising, because at issue was 

receipt of a government benefit—an FCC license—and the Supreme Court has long held that 

“[n]o one has a First Amendment right to a[n FCC] license,” Red Lion Broad. Co. v. FCC, 395 

U.S. 367, 389 (1969); see also Ruggiero v. FCC, 317 F.3d 239, 250 (D.C. Cir. 2003) (en banc) 

(“‘No one has a First Amendment right to a license,’ and it follows that no one has a First 

Amendment right to apply for a license.” (citing Red Lion Broad. Co., 395 U.S. at 389)). 

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The Commission’s reliance on these cases simply highlights the lack of authority 

suggesting that aliens’ political speech is protected by less than heightened scrutiny. Nothing in 

these cases (any more than in the other Equal Protection cases initially cited in the Commission’s 

motion to dismiss) speaks to the permissibility of (or standard of scrutiny for) restrictions on 

aliens that implicate the Bill of Rights. They stand only for the proposition that it is permissible, 

under Equal Protection principles, to exclude aliens from government jobs that involve the 

exercise of sovereign authority. (SJ 51) In the Court’s own description, the cases apply rational 

basis review to “exclusions that entrust only to citizens important elective and nonelective 

positions whose operations ‘go to the heart of representative government.’” Bernal v. Fainter, 

467 U.S. 216, 221 (1984) (quoting Sugarman v. Dougall, 413 U.S. 634, 647 (1973)); see also 

Cabell v. Chavez-Salido, 454 U.S. 432, 439 (1982) (allowing distinctions between citizens and 

aliens with respect to “the establishment and operation of [a State’s] own government, as well as 

the qualifications of an appropriately designated class of public office holders” (quoting 

Sugarman, 413 U.S. at 648)). They do not offer the slightest support for the proposition that 

aliens can be banned from any form of political speech on the odd theory that such speech is an 

attempt to participate in democratic “self-government.” 

C. The Restrictions of the Alien Gag Law Are Subject to Heightened Scrutiny. 

Contrary to the Commission’s unsupported position, § 441e’s ban on independent 

expenditures is subject to strict scrutiny and its ban on contributions is subject at least to 

heightened scrutiny. This conclusion flows inexorably from clear Supreme Court precedent. 

Resident aliens like Plaintiffs are fully protected by the First Amendment. “[O]nce 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,” including “those protected by the First . . . 

Amendment[].” Kwong Hai Chew v. Colding, 344 U.S. 590, 596 n.5 (1953) (quoting Bridges v. 

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 11

Wixon, 326 U.S. 135, 161 (1945) (Murphy, J., concurring). Indeed, it is so “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 

concurring in the judgment) (quoting Bridges, 326 U.S. at 148 (majority opinion)), that even the 

Commission concedes this point (Opp. 18 n.3, 22). And the First Amendment requires that 

restrictions on political expenditures satisfy strict scrutiny, Buckley, 424 U.S. at 44-45; FEC v. 

Wisc. Right to Life, Inc., 551 U.S. 449, 461 (2007) (plurality opinion), while restrictions on 

political contributions must, at least, be “closely drawn” to accomplish a “sufficiently important 

interest.” Buckley, 424 U.S. at 25.4

Each of the Alien Gag Law’s restrictions, therefore, can survive only if it is justified by a 

sufficiently important government interest and is well-tailored to serve that interest.5

 4

 Plaintiffs maintain that a complete ban on contributions is subject to strict scrutiny. As the Commission 

notes (Opp. 31), the Court in FEC v. Beaumont, 539 U.S. 146 (2003), said that a complete ban need only be “closely 

drawn to match a sufficiently important interest.” Id. at 161-62. This was only dicta, however, given that the Court 

concluded in the next paragraph that the plaintiff was “simply wrong in characterizing [the statute] as a complete 

ban,” id. at 162. In any event, the precise level of heightened scrutiny is immaterial in light of the illegitimate 

purpose asserted by the Commission, as explained below. See Part II, infra. 

5

 The Commission attempts to characterize Plaintiff Steiman’s proposed donation to the independent Club 

for Growth as a “contribution” rather than an “independent expenditure,” citing the statutory definition of 

“contribution.” (Opp. 32 n.9) But it is the constitutional, not the statutory, definition that determines the applicable 

level of scrutiny. And Buckley’s unique treatment of “contributions” is premised upon “the perception of undue 

influence of large contributors to a candidate.” Citizens Against Rent Control v. Berkeley, 454 U.S. 290, 296-97 

(1981) (emphasis added). It therefore has no application to donations to independent political groups like the Club 

for Growth. As the D.C. Circuit recently explained: “After all, if one person is constitutionally entitled to spend $1 

million to run advertisements supporting a candidate (as Buckley held), it logically follows that 100 people are 

constitutionally entitled to donate $10,000 each to a non-profit group that will run advertisements supporting a 

candidate.” Emily’s List v. FEC, 581 F.3d 1, 10 (D.C. Cir. 2009). 

Incredibly, the Commission also objects that the Club for Growth states on its website that it does not 

accept donations from foreign nationals. Might that be because the very law Plaintiffs challenge criminalizes it, and 

the Commission itself directs organizations to provide such disclaimers? See FEC Advisory Op. 1995-09 (“The 

following cautionary language should be substituted . . . to let potential contributors know that the Act may affect . . 

. their ability to contribute: ‘Sorry, Federal law prohibits foreign nationals who lack permanent residence status from 

contributing to NewtWatch.’”). 

Anyway, since Plaintiff Bluman seeks to make a classic independent expenditure by printing and 

distributing leaflets in a park, neither of these points ultimately matters to disposition of this case. 

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II. The Commission’s Attempts To Satisfy Heightened Scrutiny Are Meritless. 

In the alternative, the Commission takes a shot at defending the Alien Gag Law under 

heightened scrutiny. (Opp. 32-52) Disclaiming several possible purposes of the statute critiqued 

by Plaintiffs, the Commission’s catch-phrase is preventing “foreign influence.” (Opp. 32) 

Standing alone, that is circular: The reason for keeping aliens out of the discussion is to reduce 

their influence on the discussion. But why? The Commission’s apparent answer is that resident 

aliens have a less substantial interest in participating in the discussion, and that adding their 

voices to the mix might affect the views of other participants. But the Government’s desire to 

silence truthful, influential speech about the Government by persons protected by the First 

Amendment is hardly a legitimate interest; it is the core evil that the First Amendment is designed 

to prevent. And although the failure to identify a “sufficiently important interest” moots any 

questions of tailoring, the Commission’s attempts to show that Congress carefully targeted 

§ 441e at the evils of “foreign influence” actually prove just the opposite. 

A. The Commission Expressly Disclaims a Series of Potential Rationales for the 

Alien Gag Law. 

At the outset, it is worth recounting the possible purposes of the Alien Gag Law that the 

Commission expressly disclaims. The Commission periodically alludes to the dangers of 

corruption, the overseas use of domestic conduits, and the harmful nature of foreign views. 

Perhaps because it realizes that the statute is not remotely tailored to target those things, 

however, it affirmatively abandons these concerns as the motivating rationales of § 441e. 

Because, under heightened scrutiny, the Commission must defend the law based on its actual 

rationale, the Commission’s concessions considerably narrow this Court’s inquiry. See United 

States v. Virginia, 518 U.S. 515, 533 (1996) (“The justification must be genuine, not 

hypothesized or invented post hoc in response to litigation.”). 

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1. Anti-corruption. Plaintiffs pointed out that, to the extent that § 441e is intended to 

combat corruption (i.e., actual “influence-buying”), it is vastly overinclusive. Contribution limits

could be imposed, as they are on citizens, but neither expenditure limits nor contribution bans

are constitutionally permissible means of preventing corruption. (SJ 42) The Commission now 

expressly admits that § 441e “is not an anticorruption measure.” (Opp. 52) 

2. Anti-circumvention. Plaintiffs also observed that, if § 441e is meant to prevent 

the use of residents as conduits for illegal spending by overseas actors who lack constitutional 

protections, it is not supported by a sufficient record of such circumvention and is anyway both 

underinclusive and overinclusive. (SJ 43-46) Among other things, another law already prohibits 

contributions by conduit, 2 U.S.C. § 441f, and (as the Commission concedes) overseas entities 

can just as easily funnel donations through “citizen . . . intermediaries” (Opp. 14). In any case, 

the Commission now denies that the Alien Gag Law is an anti-circumvention statute. Rather, as 

the Commission notes, before the enactment of § 441e, foreign entities were already banned 

from using domestic agents as conduits; thus, the law’s purpose was to “reach direct spending,” 

not the “indirect foreign spending that is also illegal under section 441f.” (Opp. 35)6

3. “Harmful” Views. Plaintiffs also contended that the statute could not be upheld 

as a means of protecting against damage that would supposedly result from the election of 

candidates backed by resident aliens. (SJ 40-41) The Government may only restrict dangerous 

speech if it is likely to produce “imminent lawless action,” Brandenburg v. Ohio, 395 U.S. 444, 

447 (1969) (per curiam), a standard that could not possibly be met here. Plaintiffs felt it 

necessary to make this point in light of the Commission’s repeated invocations of the deference 

owed the political branches on matters of national security. Indeed, the Commission continues to 

 6

 The Commission goes on to dispute Plaintiffs’ argument that § 441e was not tailored to prevent 

circumvention of the ban on overseas contributions (Opp. 35-36), but if the statute was not motivated by anticircumvention then it is irrelevant how well-tailored it is to that goal. See also n.8, infra. 

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assert that § 441e “represents an exercise of the federal government’s authority over the foreign 

affairs and national security of the United States.” (Opp. 13) However, when the Commission 

attempts to defend § 441e based on doctrine (rather than diffuse fear-mongering), it expressly 

concedes that the law cannot meet the Brandenburg standard: “[S]ection 441e is not a regulation 

targeting advocacy that poses a threat of producing imminent lawless action.” (Opp. 30 n.7) 

Rather, the law applies—intentionally so—to aliens “whether their views and objectives are 

innocuous or not.” (Opp. 28) So, despite the Commission’s continued attempts to wrap itself in 

the cloak of national security, § 441e is not really a harm-prevention statute either. 

In light of these admissions, there is no need for this Court to determine whether, or to 

what extent, the alternative interests disclaimed by the Commission could justify the Alien Gag 

Law, see Virginia, 518 U.S. at 533—although it is clear that they could not. 

B. The Government’s Assertedly Compelling Interest in Preventing “Foreign 

Influence” Is Per Se Illegitimate Under the First Amendment. 

Having clarified that § 441e is not intended to fight corruption, prevent circumvention, or 

protect national security, the Commission is unapologetically candid about its true goals. The 

Government has decided that resident aliens have only a “small[] stake” in the question of who 

should govern the cities, states, and country in which they reside. (Opp. 43) They thus “have no 

legitimate role to play in American elections.” (Opp. 28) And allowing them to do so would 

risk “injecting distinctly foreign influence into elections.” (Opp. 43) While a resident alien 

might not be able “to drastically sway” the results of an election, his advocacy might “have some

effect.” (Opp. 39) In short, allowing resident aliens to make contributions and expenditures 

would allow them to influence the electorate, which must be stopped because their views are 

foreign. To be clear, this is offered as a defense of the law under heightened scrutiny, which 

presumes that resident aliens do enjoy the constitutional right to engage in political advocacy. 

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The Commission is thus openly asserting the power to exclude constitutionally protected 

but politically disfavored groups from the political debate. That is fundamentally inconsistent 

with the First Amendment, which “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, 209 (2008). Congress’ intent to exclude resident aliens and their 

unworthy “foreign” views from the political marketplace of ideas is not an answer to the 

constitutional problem with § 441e; it is the constitutional problem with § 441e. 

That the Government believes a class of speakers lacks a sufficient “stake” in the issue 

(Opp. 43), or “ha[s] no legitimate role to play” in the discourse (Opp. 28), is no basis for 

censorship; the First Amendment takes that determination out of government hands. In the realm 

of political speech, “the legislature is 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). Rather, it is the voters who “are 

entrusted with the responsibility for judging and evaluating the relative merits of conflicting 

arguments,” and it is the voters who “may consider, in making their judgment, the source and 

credibility of the advocate.” Id. at 791-92. (Disclosure rules, of course, are a legitimate means 

of assisting the voters in making those determinations, by providing them with additional 

information. See Citizens United, 130 S. Ct. at 914-15.) 

Nor does it matter that the speech might have an “effect” (Opp. 39) on 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)). 

Moreover, if the Commission is implying a “danger that the people cannot evaluate the 

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information and arguments advanced” by resident aliens, and will consequently make poor 

decisions, that “is a danger contemplated by the Framers of the First Amendment.” Id. at 792. 

The Commission might lack faith in the American people, but “[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). 

Just last year, the Supreme Court held that “restrictions distinguishing among different 

speakers, allowing speech by some but not others,” are “[p]rohibited.” Citizens United, 130 S. 

Ct. at 898. In the face of that clear law, the Commission concedes that § 441e “is speakerbased.” (Opp. 50) Seeking to distinguish Citizens United, the Commission argues that the ban 

on expenditures by corporations was invalidated only because it was motivated by an illicit 

“speech-equalization purpose,” i.e., an “attempt to enhance individual speech at the expense of 

corporate speech.” (Opp. 51) But it was the speaker-based nature of the ban that was the 

problem with the statute, and the reason why it had to satisfy strict scrutiny. 130 S. Ct. at 898-

99. The Government’s “antidistortion” interest in ensuring that corporations did not drown out 

other voices was simply one of (several) proffered justifications for the law that the Court 

rejected. Id. at 903. That the Government cannot even offer that defense here does not improve 

its argument. If silencing certain speakers because they can “drown out” others is a 

constitutionally insufficient justification, then silencing certain speakers merely because of who 

they are is woefully deficient. The Government would not have prevailed in Citizens United had 

it asserted an interest in silencing corporations because of distrust for their motives or a need to 

protect the electorate from “corporate influence.” 

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In short, Citizens United is fatal for the Commission’s argument. There, the Court 

decried the ban on corporate expenditures as a law whose “purpose and effect are to silence 

entities whose voices the Government deems to be suspect.” Id. at 898. The same is true here. 

There, the Court explained that “[b]y taking the right to speak from some and giving it to others, 

the Government deprives the disadvantaged person or class of the right to use speech to strive to 

establish worth, standing, and respect for the speaker’s voice.” Id. at 899. The Government does 

no less here by silencing resident aliens. 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. It is just those determinations that § 441e here embodies. And 

there, the Court concluded that it found “no basis for the proposition that, in the context of 

political speech, the Government may impose restrictions on certain disfavored speakers.” Id. 

The same proposition dooms the Alien Gag Law here. 

The Commission’s “defense” of § 441e is thus no defense at all. The “interest” in 

silencing selected voices is no more a valid justification for censorship under the First 

Amendment than an “interest” in keeping the races apart would be a valid justification for 

segregation under the Equal Protection Clause. 

C. The Alien Gag Law’s Blunderbuss Censorship Is Not Remotely Tailored to 

the Commission’s Asserted Interest. 

Because the purpose offered by the Commission to justify the Alien Gag Law is plainly 

illegitimate, § 441e is invalid, as applied to resident aliens, regardless of its tailoring. Yet, as 

Plaintiffs have explained (SJ 31-46), the law does not even have the virtue of being “closely 

drawn,” Buckley, 424 U.S. at 25—let alone “narrowly tailored,” Wis. Right to Life, 551 U.S. at 

464—to any conceivable end. The law bans all nonimmigrant aliens (no matter their status) 

from all countries (no matter how friendly to the U.S.) from making any contributions (no matter 

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how small) or any expenditures (no matter how independent) in relation to any election (no 

matter whether the alien may vote in it) in any jurisdiction within the United States (even if the 

State or city believes in a free marketplace of ideas and so imposes no contribution limits itself).7 

This is nothing like the “[p]recision of regulation” that must be “the touchstone in an area so 

closely touching our most precious freedoms.” NAACP v. Button, 371 U.S. 415, 438 (1963). 

Indeed, with respect to the tailoring of § 441e (or lack thereof), the Commission’s own 

arguments for why the statute is closely drawn (to the illegitimate end of excluding nonconstituents from political debate) are among the best examples for why it is not. 

First, the Commission notes that § 441e does not apply to lawful permanent residents 

(LPRs). (Opp. 41) But LPRs have no more right to vote or otherwise participate in “selfgovernment” than Plaintiffs. The Commission says that LPRs “are in a categorically different 

legal position vis-à-vis the United States” (Opp. 43), but the distinctions between LPRs and nonpermanent residents are overstated (as argued by amicus ICIRR) and, in any event, irrelevant to 

the stated purpose for § 441e: excluding from the political arena those individuals who do not 

hold the right to “self-government.” That is, the Commission claims that the Alien Gag Law was 

designed to “ensur[e] that government represents its constituency” (Opp. 26), yet Congress 

expressly permitted a large group of non-constituents (LPRs) to engage in speech that the 

Commission claims is “democratic self-government.” And Congress did so quite consciously, 

recognizing that the law “does not really close” the gap between voters and spenders. (SJ 37) It 

is precisely this sort of conscious underinclusion that calls into question whether “‘the proffered 

state interest actually underlies the law.’” (Opp. 44 (quoting Blount v. SEC, 61 F.3d 938, 946 

 7

 It is not clear where Congress even gets the power to enact a law regulating State and local elections. The 

Constitution ordinarily mandates “state control over the election process for state offices.” Tashjian v. Republican 

Party of Conn., 479 U.S. 208, 217 (1986). Even if Congress has the power to regulate speech relating to State 

elections, however, it surely has no legitimate interest in protecting States from speech that the States themselves 

have chosen to permit. 

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(D.C. Cir. 1995))); see also Florida Star v. BJF, 491 U.S. 524, 541-42 (1989) (Scalia, J., 

concurring in part and concurring in judgment) (“[A] law cannot be regarded as protecting an 

interest ‘of the highest order,’ . . . when it leaves appreciable damage to that supposedly vital 

interest unprohibited.” (quoting Smith v. Daily Mail Publishing Co., 443 U.S. 97, 103 (1979))).8

In fact, the legislative history indicates not that Congress drew a principled or defensible 

line between LPRs and non-permanent residents, but rather that Congress was simply not 

cognizant that many people lawfully live and work in the United States but are not classified as 

LPRs under the immigration laws. The floor exchange between Senators Bentsen and Cannon—

which the Commission ignores—makes this clear. (SJ 18) When the latter warned that the ban 

would cover “a pretty substantial number of people who were here properly in this country . . . 

who are not here as permanent residents,” 120 Cong. Rec. 8783 (Mar. 28, 1974), and thus went 

“further than would be intended by Members of this body if they were here to hear the discussion 

on it,” id. at 8784, the sponsor of the amendment reassured those present that the law “was 

carefully drawn to try to exclude certain people who might be legally in this country passing 

through here as tourists,” id. In other words, the amendment was written to ban spending by 

aliens who were tourists or resided overseas, and to permit spending by LPRs, with no apparent 

consideration for those who fall in between those categories. The application of § 441e to nonpermanent residents like Plaintiffs was thus an oversight, not a manifestation of the careful 

congressional tailoring necessary to survive heightened scrutiny. 8

 Although the Commission has denied that § 441e is intended to prevent the use of resident aliens as 

conduits, the failure to cover LPRs undermines that potential purpose as well. As previously noted, overseas donors 

have long been prohibited from using agents in the U.S. to make political contributions. And the more recent 

evidence of foreign contributions cited by the Commission (though not, apparently, by the Congress that enacted 

§ 441e) involved conduits who were either citizens or LPRs. It would be bizarre if § 441e were intended to target 

contributions by conduit but Congress had excluded the class of aliens supposedly engaged in the problem while 

including the class that was not. (The Commission implies that Ted Sioeng was a non-permanent resident (Opp. 

15), but this is misleading; the source cited by the Commission states that he was not a resident at all. See S. Rep. 

No. 105-167 at 5573, available at http://www.fas.org/irp/congress/1998_rpt/sgo-sir/4-7.htm (describing Sioeng “an 

Indonesian-born businessman who is not a U.S. citizen or a legal resident”); id. at 965, available at 

http://www.fas.org/irp/congress/1998_rpt/sgo-sir/1-12.htm (describing Sioeng as “originally from Indonesia, [and] a 

citizen of Belize who splits his time between Singapore and Hong Kong”).)

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Second, the Commission contends that § 441e is well-tailored because it permits resident 

aliens to engage in issue advocacy, including with respect to ballot initiatives. (Opp. 45-46) But 

it similarly fails to offer any explanation for why, if the ban on election advocacy is necessary to 

further Congress’s “fundamental obligation” of “ensuring that government represents its 

constituency” (Opp. 26), the statute carves out aliens’ advocacy regarding ballot initiatives. Like 

permanent residents’ election advocacy, aliens’ advocacy with respect to ballot initiatives 

involves the participation of non-constituents in what the Commission claims are acts of “selfgovernment” that must be reserved for constituents. Indeed, ballot initiatives—which create 

positive law directly—implicate democracy and self-government far more powerfully than the 

election of candidates to public office, who only later proceed to draft and enact laws. 

According to the Commission, § 441e’s acceptance of alien advocacy regarding ballot initiatives 

does not call into question Congress’s goal because Congress had not been presented with any 

evidence about aliens’ attempts to influence such initiatives. (Opp. 46) Apparently Congress 

saw fit to generalize and extrapolate from Nazi propaganda, Chinese government meddling, and 

a few episodes of campaign contributions from overseas (Opp. 14-15), none of which involved 

resident aliens, in enacting a wide-ranging ban that prevents resident aliens, no matter their 

nationality, from contributing or independently advocating for candidates—but then arbitrarily 

drew a line in the sand when it came to ballot initiatives, demanding specific evidence before 

taking action.9

 Again, this demonstrates the opposite of careful tailoring: unreasoned and 

arbitrary line-drawing. 

 9

 The Commission also attempts to justify this disparate statutory treatment by adverting to the Supreme 

Court’s own disparate treatment of contributions to candidates versus contributions to ballot-initiative committees. 

(Opp. 46) The basis for that distinction, however, is that the “risk of corruption perceived in cases involving 

candidate elections simply is not present in a popular vote on a public issue.” Bellotti, 435 U.S. at 790 (citations 

omitted) (cited in Citizens Against Rent Control, 454 U.S. at 298). The Commission, having disclaimed any anticorruption motive behind § 441e, see Part II.A, supra, cannot rely on a corruption theory to justify the law’s 

underinclusivity; and with respect to the interest the Commission has asserted, there is no reason to distinguish 

between spending on candidate advocacy and spending on ballot initiatives. 

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III. The Commission Continues To Argue from Consequences That Do Not Follow from 

Plaintiffs’ Position. 

 The Commission continues to suggest that vindicating Plaintiffs’ well-established First 

Amendment rights to political speech would require recognition of the same rights for illegal 

aliens and foreign corporations. (Opp. 39-40) Yet, unlike with respect to resident aliens, no 

court (to Plaintiffs’ knowledge) has held that these groups generally possess First Amendment 

rights; the Supreme Court has pointedly stopped short of so holding; and nothing in Plaintiffs’ 

arguments would require a different course. There are compelling reasons to treat lawful 

resident aliens differently from illegal aliens and foreign corporations, and the Commission’s 

strategic blindness to these distinctions ought not confuse this Court about the scope of 

Plaintiffs’ claim or reasoning. Nor is the Commission’s attack on the soundness of the Supreme 

Court’s Verdugo-Urquidez precedent any basis for this Court to ignore Plaintiffs’ rights. 

 As to foreign corporations, the Commission complains that “Plaintiffs fail . . to offer any 

principled distinction between themselves and foreign corporations transacting business 

domestically.” (Opp. 38) But Plaintiffs have offered a distinction: Foreign corporations, in 

contrast to Plaintiffs, are not “residents” of the United States under Verdugo-Urquidez. (SJ 56 

(“[I]f Plaintiffs are correct that natural persons residing in the United States are protected by the 

First Amendment, the same does not necessarily follow for corporations—fictional persons—

that are incorporated in foreign countries.”)) They therefore lack First Amendment rights at the 

threshold, and so their speech can be freely regulated. Plaintiffs are unaware of any case finding 

to the contrary, and the Supreme Court has plainly left open such a position. Citizens United, 

130 S. Ct. at 911. In light of this authority, the Commission’s assertion that there is no 

“principled” distinction between aliens residing in the United States, on the one hand, and 

corporations created and registered overseas, on the other, seems disingenuous. If Plaintiffs 

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prevail in this action, would the Commission really concede in a later case that foreign 

corporations are necessarily “residents” of the United States? 

 Likewise, nothing in Plaintiffs’ position would require the Court to recognize the political 

speech rights of illegal aliens. In Verdugo-Urquidez, the Court went out of its way to cast doubt 

on the argument that illegal aliens qualify as members of “the people” protected by the First and 

Fourth Amendments. 494 U.S. at 272. Indeed, Justice Stevens criticized the Court for its (in his 

view) unnecessary “comment” on the rights of illegal aliens. Id. at 279 n.* (Stevens, J., 

concurring in the judgment). Moreover, there is an obvious basis to distinguish between lawful 

resident aliens and those unlawfully present: A member of the latter is not present pursuant to 

any mutual “compact” with the United States. Id. at 264 (majority opinion); id. at 265 (“[An 

e]xcludable alien is not entitled to First Amendment rights, because ‘[h]e does not become one of 

the people to whom these things are secured by our Constitution by an attempt to enter forbidden 

by law.’” (quoting United States ex rel. Turner v. Williams, 194 U.S. 279, 292 (1904))). Lower 

courts have followed the Supreme Court’s lead on this issue. See United States v. EsparzaMendoza, 265 F. Supp. 2d 1254, 1270 (D. Utah 2003) (Cassell, J.) (“An illegal alien . . . is not 

entitled to First Amendment rights.”). And, indeed, the Government itself has zealously 

advanced the argument that illegal aliens are constitutionally distinguishable from lawful 

resident aliens. See United States v. Guitterez, 983 F. Supp. 905, 914 (N.D. Cal. 1998) (“In the 

instant case, the Government contends that the clear ‘thrust’ of Verdugo-Urquidez and [United 

States v.] Barona[, 56 F.3d 1087, 1093 (9th Cir. 1995)] is that ‘an illegal alien . . . should not be 

granted Fourth Amendment protections.’”). All of this fatally belies the Commission’s 

suggestion that no such distinction can tenably be drawn. 

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 More generally, the Commission attacks (without offering any alternative) the VerdugoUrquidez framework—under which residents of the United States hold “sufficient connection 

with this country” to qualify as among “the people” protected by the First and Fourth 

Amendments, 494 U.S. at 265, 271—as “so vague as to be meaningless as a limiting principle.” 

(Opp. 37) As a threshold matter, the Commission’s criticisms are no basis for this Court to 

disregard binding precedent. Anyway, the Court’s test strikes an intuitive balance between two 

unacceptable extremes: holding that everyone who sets foot in the country is entitled to the full 

panoply of constitutional protections, on the one hand; and restricting core constitutional 

protections exclusively to citizens, on the other. Granted, the Court adopted a standard rather 

than a bright-line rule, but that is common (if not the norm) in the sensitive First Amendment 

context. See, e.g., Randall v. Sorrell, 548 U.S. 230, 248 (2006) (plurality opinion) (assessing 

validity of contribution limit by inquiring whether it poses “constitutional risks to the democratic 

electoral process” that are “too great”); Texas v. Johnson, 491 U.S. 397, 404 (1989) (classifying 

conduct as expressive if it “possesses sufficient communicative elements to bring the First 

Amendment into play”); Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 513 (1969) 

(holding that speech in schools can be restricted if it “materially disrupts classwork or involves 

substantial disorder”); see also Johnson v. De Grandy, 512 U.S. 997, 1008 (1994) (requiring 

minority plaintiff challenging redistricting plan to demonstrate possibility of additional 

“reasonably compact districts” with “sufficiently large minority population[s]”). Indeed, even as 

the Commission criticizes the Supreme Court’s Verdugo-Urquidez “sufficient connection” 

standard as too malleable (Opp. 37), it simultaneously argues that complete bans on political 

contributions should be upheld if they are closely drawn to further a “sufficiently important 

interest” (Opp. 30 (quoting Buckley, 424 U.S. at 25) (internal quotation marks omitted)). 

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 Here, because Plaintiffs present only an as-applied challenge, this Court need go no 

further than to declare what the Commission cannot and does not dispute: that Plaintiffs—as 

aliens who lawfully live, work, and pay taxes in the United States—plainly satisfy the VerdugoUrquidez standard. The fact that one might reasonably interpret the Supreme Court’s test more 

generously is irrelevant; doubts about the outer boundaries of the First Amendment’s scope are 

surely no basis to deny constitutional freedoms to aliens who indisputably fall within it. 

CONCLUSION

Plaintiffs respectfully request that this Court enter summary judgment in their favor. 

Dated: March 28, 2011 Respectfully submitted, 

/s/ Jacob M. Roth

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

Warren D. Postman (D.C. Bar No. 995083) 

JONES DAY 

51 Louisiana Avenue N.W. 

Washington, DC 20001 

Telephone: (202) 879-3939 

Facsimile: (202) 626-1700 

yroth@jonesday.com 

wpostman@jonesday.com 

Counsel for Plaintiffs 

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