IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

Benjamin Bluman, et al.,

 Plaintiffs, 

v. 

Federal Election Commission, 

 Defendant. 

Civ. No. 10-1766 

(Three Judge Court) 

PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT 

[ORAL ARGUMENT REQUESTED] 

 Pursuant to Federal Rule of Civil Procedure 56 and this Court’s Local Rule 7, Plaintiffs 

Benjamin Bluman and Dr. Asenath Steiman respectfully move this Court for entry of an Order 

granting summary judgment in their favor. Specifically, Plaintiffs move for summary judgment 

on their claim that 2 U.S.C. § 441e violates their rights under the First Amendment. 

 In support of this Motion, Plaintiffs are filing a Memorandum of Points and Authorities 

and Statement of Material Facts, along with two Declarations and a Proposed Order. Plaintiffs 

request oral argument on this Motion. 

 For the reasons provided in the supporting Memorandum, Plaintiffs contend that there is 

no genuine disputed issue as to any material fact and that they are entitled to judgment as a 

matter of law on their claim. Consequently, Plaintiffs respectfully pray that this Court grant 

summary judgment in their favor, declare that 2 U.S.C. § 441e is unconstitutional as applied to 

them, and enjoin the Defendant from enforcing the statute against them. 

Case 1:10-cv-01766-RMU Document 20 Filed 01/18/11 Page 1 of 62
 - - 2

Dated: January 18, 2010 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 

Case 1:10-cv-01766-RMU Document 20 Filed 01/18/11 Page 2 of 62
 

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 

(Three Judge Court) 

MEMORANDUM OF POINTS AND 

AUTHORITIES 

MEMORANDUM IN SUPPORT OF 

PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT 

AND IN OPPOSITION TO 

DEFENDANT’S MOTION TO DISMISS 

 

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 

Case 1:10-cv-01766-RMU Document 20 Filed 01/18/11 Page 3 of 62
 

TABLE OF CONTENTS 

Page 

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

FACTUAL BACKGROUND........................................................................................................ 3 

I. PLAINTIFFS ..................................................................................................................... 3 

II. THE STATUTORY FRAMEWORK................................................................................ 4 

ARGUMENT................................................................................................................................. 7 

I. THE FIRST AMENDMENT PROTECTS ALL LAWFUL RESIDENTS OF THE 

UNITED STATES, INCLUDING PLAINTIFFS.............................................................. 9 

A. Text: The Constitution Does Not Limit Free Speech Rights to Citizens. .............. 9 

B. History: At the Founding and Beyond, Aliens Broadly Participated in First 

Amendment Activities, Including Domestic Political Expression. ..................... 10 

C. Precedent: The Supreme Court Has Long Accorded First Amendment 

Rights to Lawful Residents.................................................................................. 12 

D. Plaintiffs Lawfully Reside and Work in the United States, and Therefore 

Qualify for First Amendment Protection. ............................................................ 15 

II. THE FIRST AMENDMENT PROTECTS THE EXPRESSION OF POLITICAL 

VIEWS THROUGH CONTRIBUTIONS AND EXPENDITURES............................... 17 

A. A Complete Ban on Contributions Is Subject to Strict Scrutiny Under the 

First Amendment. ................................................................................................ 17 

B. A Complete Ban on Expenditures Is Subject to Strict Scrutiny Under the 

First Amendment. ................................................................................................ 18 

III. THE GOVERNMENT CANNOT MEET ITS BURDEN TO JUSTIFY THE 

RESTRICTIONS IN THE ALIEN GAG LAW............................................................... 19 

A. The Government Cannot Prohibit Political Speech Merely Because the 

Speaker Lacks the Right To Vote. ....................................................................... 21 

1. Even those who cannot vote are entitled to express their views on 

matters of public concern......................................................................... 21 

2. In any event, the statutory restrictions are not tied to the right to 

vote........................................................................................................... 24 

B. Plaintiffs’ Nationalities and the Threat of “Foreign Influence” Provides 

No Justification for Gagging Them. .................................................................... 27 

1. Foreign Allegiance: The First Amendment does not countenance 

criminalization of speech based on its source.......................................... 28 

2. Anti-Circumvention: The Alien Gag Law is not tailored to prevent 

a demonstrated danger of donations by foreign sovereigns..................... 31 

Case 1:10-cv-01766-RMU Document 20 Filed 01/18/11 Page 4 of 62
 ii

IV. THE GOVERNMENT’S ATTEMPTS TO EVADE HEIGHTENED SCRUTINY 

ARE IRRECONCILABLE WITH DECADES OF CONTROLLING 

PRECEDENT. ................................................................................................................. 35 

A. The Government’s “Plenary Power” Cannot Justify The Prohibitions of 

the Alien Gag Law............................................................................................... 35 

1. Congress’s “plenary power” over immigration does not override 

the First Amendment................................................................................ 36 

2. In any event, the Alien Gag Law does not regulate immigration. ........... 41 

B. The Commission’s Parade of Horribles Is Unfounded and Anyway No 

Reason To Abandon the First Amendment.......................................................... 41 

CONCLUSION............................................................................................................................ 45 

 

Case 1:10-cv-01766-RMU Document 20 Filed 01/18/11 Page 5 of 62
 

TABLE OF AUTHORITIES 

Page(s) 

CASES

Abrams v. United States, 

250 U.S. 616 (1919).................................................................................................................10 

Ambach v. Norwick, 

441 U.S. 68 (1979).............................................................................................................26, 38 

* American-Arab Anti-Discrimination Committee v. Reno, 

70 F.3d 1045 (9th Cir. 1995) .......................................................................................13, 14, 38 

Ashcroft v. Free Speech Coalition, 

535 U.S. 234 (2002)...........................................................................................................20, 34 

Austin v. Michigan Chamber of Commerce, 

494 U.S. 652 (1990).................................................................................................................19 

Bartnicki v. Vopper, 

532 U.S. 514 (2001)...........................................................................................................32, 33 

Bernal v. Fainter, 

467 U.S. 216 (1984).................................................................................................................20 

Bolling v. Sharpe, 

347 U.S. 497 (1954).................................................................................................................39 

Boumediene v. Bush, 

553 U.S. 723 (2008).................................................................................................................42 

Brandenburg v. Ohio, 

395 U.S. 444 (1969) (per curiam)............................................................................................29 

Bridges v. California, 

314 U.S. 252 (1941).................................................................................................................12 

* Bridges v. Wixon, 

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

Brunnenkant v. Laird, 

360 F. Supp. 1330 (D.D.C. 1973)......................................................................................14, 38 

* Buckley v. Valeo, 

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

Case 1:10-cv-01766-RMU Document 20 Filed 01/18/11 Page 6 of 62
 ii

Cabell v. Chavez-Salido, 

454 U.S. 432 (1981)...........................................................................................................38, 39 

* Citizens United v. FEC, 

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

Colo. Republican Fed. Campaign Comm. v. FEC, 

518 U.S. 604 (1996).................................................................................................................25 

Communist Party of Ind. v. Whitcomb, 

414 U.S. 441 (1974).................................................................................................................29 

Dennis v. United States, 

341 U.S. 494 (1951)...........................................................................................................13, 40 

Edwards v. Johnson, 

209 F.3d 772 (5th Cir. 2000) ...................................................................................................14 

FCC v. League of Women Voters of Cal., 

468 U.S. 364 (1984)...........................................................................................................24, 26 

FEC v. Colo. Republican Fed. Campaign Comm., 

533 U.S. 431 (2001).................................................................................................................19 

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

551 U.S. 449 (2007) (plurality opinion) ......................................................................18, 19, 20 

Fed. for Am. Imm. Reform v. Klutznick, 

486 F. Supp. 564 (D.D.C. 1980)..............................................................................................42 

First Nat’l Bank of Boston v. Bellotti, 

435 U.S. 765 (1978)...............................................................................................22, 24, 29, 32 

Florida Star v. BJF, 

491 U.S. 524 (1989).................................................................................................................24 

Foley v. Connelie, 

435 U.S. 291 (1978)...............................................................................................21, 26, 38, 39 

Fong Yue Ting v. United States, 

149 U.S. 698 (1893).....................................................................................................12, 36, 37 

Galvan v. Press, 

347 U.S. 522 (1954).................................................................................................................40 

Haig v. Agee, 

453 U.S. 280 (1981)...........................................................................................................39, 40 

Case 1:10-cv-01766-RMU Document 20 Filed 01/18/11 Page 7 of 62
 iii

Hampton v. Mow Sun Wong, 

426 U.S. 88 (1976).............................................................................................................38, 39 

Harisiades v. Shaughnessy, 

342 U.S. 580 (1952)...........................................................................................................13, 40 

In re Weitzman, 

426 F.2d 439 (8th Cir. 1970) ...................................................................................................14 

INS v. Chadha, 

462 U.S. 919 (1983)...........................................................................................................36, 37 

Kleindienst v. Mandel, 

408 U.S. 753 (1972).................................................................................................................39 

Kwong Hai Chew v. Colding, 

344 U.S. 590 (1953)...........................................................................................................13, 37 

Mathews v. Diaz, 

426 U.S. 67 (1982)...................................................................................................................38 

* McConnell v. FEC, 

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

McDonald v. Smith, 

472 U.S. 479 (1985).................................................................................................................10 

Miller v. Johnson, 

515 U.S. 900 (1995).................................................................................................................20 

Minor v. Happersett, 

88 U.S. 162 (1875)...................................................................................................................11 

Monitor Patriot Co. v. Roy, 

401 U.S. 265 (1971).................................................................................................................18 

Moving Phones P’ship v. FCC, 

998 F.2d 1051 (D.C. Cir. 1993)...............................................................................................39

NAACP v. Button, 

371 U.S. 415 (1963).................................................................................................................20 

Parcham v. INS, 

769 F.2d 1001 (4th Cir. 1985) .................................................................................................14 

Plyler v. Doe, 

457 U.S. 202 (1982)...........................................................................................................38, 39 

Case 1:10-cv-01766-RMU Document 20 Filed 01/18/11 Page 8 of 62
 iv

Rafeedie v. INS, 

795 F. Supp. 13 (D.D.C. 1992)..........................................................................................14, 38 

Randall v. Sorrell, 

548 U.S. 230 (2006) (plurality opinion) ............................................................................17, 30 

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

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

Schneider v. Kissinger, 

412 F.3d 190 (D.C. Cir. 2005).................................................................................................38 

Smith v. Daily Mail Publishing Co., 

443 U.S. 97 (1979).............................................................................................................24, 32 

Sugarman v. Dougall, 

413 U.S. 634 (1973).................................................................................................................38 

Tashjian v. Republican Party of Conn., 

479 U.S. 208 (1986).................................................................................................................43 

Thornhill v. Alabama, 

310 U.S. 88 (1940)...................................................................................................................24 

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

393 U.S. 503 (1969)...................................................................................................................8 

United States ex rel. Turner v. Williams, 

194 U.S. 279 (1904)...................................................................................................................7 

United States v. Comstock, 

130 S. Ct. 1949 (2010).............................................................................................................36 

United States v. Curtiss-Wright Export Corp., 

299 U.S. 304 (1936)...........................................................................................................36, 38 

United States v. Hsia, 

176 F.3d 517 (D.C. Cir. 1999).................................................................................................33 

United States v. Kanchanalak, 

192 F.3d 1037 (D.C. Cir. 1999)...............................................................................................33

United States v. Morrison, 

529 U.S. 598 (2000).................................................................................................................36 

United States v. Playboy Ent’mt Group, Inc., 

529 U.S. 803 (2000).................................................................................................................20 

Case 1:10-cv-01766-RMU Document 20 Filed 01/18/11 Page 9 of 62
 v

* United States v. Verdugo-Urquidez, 

494 U.S. 259 (1990)...............................................................................................13, 16, 37, 42 

* Vannatta v. Keisling, 

151 F.3d 1215 (9th Cir. 1998) .................................................................................................23 

Wong Wing v. United States, 

163 U.S. 228 (1896).................................................................................................................12 

Yick Wo v. Hopkins, 

118 U.S. 356 (1886).................................................................................................................42 

CONSTITUTIONAL AUTHORITIES

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

U.S. Const. Amendment XIV ................................................................................................ passim

U.S. Const. Amendment XXVI .....................................................................................................22 

U.S. Const. Article I, § 2, cl. 2...................................................................................................9, 22 

U.S. Const. Article I, § 3................................................................................................................22 

U.S. Const. Article I, § 8, cl. 17.....................................................................................................23 

U.S. Const. Article II, § 1 ..............................................................................................................22 

STATUTES

52 Stat. 632 (1938)...........................................................................................................................5 

2 U.S.C. § 431(11) .........................................................................................................................30 

2 U.S.C. § 434................................................................................................................................30 

2 U.S.C. § 437g................................................................................................................................4 

2 U.S.C. § 441b(a) .........................................................................................................................44 

2 U.S.C. § 441a..............................................................................................................................30 

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

2 U.S.C. § 441f ..................................................................................................................32, 33, 34 

8 U.S.C. § 1101(a) ...............................................................................................................5, 15, 16 

8 U.S.C. § 1184(a)(1).....................................................................................................................15 

Case 1:10-cv-01766-RMU Document 20 Filed 01/18/11 Page 10 of 62
 vi

22 U.S.C. § 2370(f)........................................................................................................................34 

50 U.S.C. App. § 2404(b) ..............................................................................................................34 

Barnesville, Md., Town Charter § 74-3 .........................................................................................26 

Bi-Partisan Campaign Reform Act, Pub. L. No. 107-155, 116 Stat. 96 (2002) ..........................7, 8 

Chevy Chase, Md., Town Charter art. III, § 301 ...........................................................................26 

DISCLOSE Act, 111th Cong., 2d Sess. S.3295 (2010).................................................................44 

Federal Election Campaign Act Amendments of 1974, Pub. L. No. 93-443, § 101(d), 

88 Stat. 1263 ..............................................................................................................................5 

Federal Election Campaign Act Amendments of 1976, Pub. L. 94-283, 90 Stat. 475 ....................7 

Foreign Agents Registration Act, Pub. L. No. 89-486, 80 Stat. 244 ...........................................4, 5 

Garrett Park, Town Charter art. III, § 78-20..................................................................................26 

Ill. Rev. Stat. Chapter 122, 34-1-1, 34-2-1 (1989).........................................................................26 

I.R.C. § 7701(b) .............................................................................................................................16 

N.Y. Educ. L. § 2590-c(4) (McKinney Supp. 1978–1979) ...........................................................26 

Somerset, Md., Town Charter art. V, § 83-21 ...............................................................................26 

Takoma Park, Md., Town Charter art. VI, § 601...........................................................................26 

Village of Martin’s Addition, Md., Town Charter art. III, § 30 ....................................................26 

REGULATIONS

8 C.F.R. § 214.6.............................................................................................................................15 

11 C.F.R. § 110.4(b)(2)..................................................................................................................32 

Contribution Limitations and Prohibitions, 67 Fed. Reg. 69928 (Nov. 19, 2002) ..........................7 

OTHER AUTHORITIES

120 Cong. Rec. 8782 (Mar. 28, 1974) ................................................................................... passim 

T. Alexander Aleinikoff, Federal Regulation of Aliens and the Constitution, 

83 Am. J. Int’l L. 862 (1989)...................................................................................................40 

Case 1:10-cv-01766-RMU Document 20 Filed 01/18/11 Page 11 of 62
 vii

Jonathan Allen, Oberstar Has One Donor in District, Politico.com, Oct. 13, 2010, 

available at http://www.politico.com/news/stories/1010/43557.html.....................................23 

Akhil Reed Amar, The Bill of Rights and the Fourteenth Amendment, 

101 Yale L.J. 1193 (1992) .......................................................................................................11 

Leon E. Aylsworth, The Passing of Alien Suffrage, 25 Am. Pol. Sci. Rev. 114 (1931)................11 

Bruce D. Brown, Alien Donors: The Participation of Non-Citizens in the U.S. Campaign 

Finance System, 15 Yale L. & Pol’y Rev. 503 (1997) ......................................................20, 33 

Lori F. Damrosch, Politics Across Borders: Nonintervention and Nonforcible Influence 

over Domestic Affairs, 83 Am. J. Int’l L. 1 (1989)....................................................................5 

Dep’t of Homeland Security, Office of Immigration Statistics, Nonimmigrant Admissions 

to the United States: 2009, App. A (Apr. 2010), available at

http://www.dhs.gov/xlibrary/assets/statistics/publications/ni_fr_2009.pdf.............................16 

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

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

The Federalist No. 10 ....................................................................................................................43 

Richard L. Hasen, Citizens United and the Illusion of Coherence, 

109 Mich. L. Rev. 581 (2011)..................................................................................................20 

Brian C. Mooney, Outside Donations Buoyed Brown, Boston Globe, Feb. 24, 2010...................23 

Gerald L. Neuman, “We Are the People”: Alien Suffrage in German and American 

Perspective, 13 Mich. J. Int’l L. 259 (1992)............................................................................11 

Note, “Foreign” Campaign Contributions and the First Amendment, 110 Harv. L. Rev. 

1886 (1997)..............................................................................................................................20 

Jamin B. Raskin, Legal Aliens, Local Citizens: The Historical, Constitutional and 

Theoretical Meanings of Alien Suffrage, 141 U. Pa. L. Rev. 1391 (1993)..............................11 

Roberto Suro, Clinton Fund-Raiser to Plead Guilty, Wash. Post, May 22, 1999 .........................33 

Chilton Williamson, American Suffrage from Property to Democrary 1760-1860 (1960)...........11 

Michael J. Wishnie, Immigrants and the Right to Petition, 78 N.Y.U. L. Rev. 667 (2003)..........10 

Case 1:10-cv-01766-RMU Document 20 Filed 01/18/11 Page 12 of 62
 

INTRODUCTION

 All that Plaintiffs seek in this lawsuit is to vindicate their core First Amendment rights to 

political association and expression. They lawfully reside in the United States. They lawfully 

work in the United States. They pay taxes imposed by the United States. They abide by the laws 

of the United States. And they will be doing all of this for years. Yet, under 2 U.S.C. § 441e, it 

is a crime for Plaintiffs to engage in basic political expression by making campaign contributions 

or spending money on election-related speech. A crime, simply because Plaintiffs are not U.S. 

citizens or permanent residents. As applied to Plaintiffs, this content-discriminatory, speakerdiscriminatory Alien Gag Law cannot remotely withstand scrutiny under the First Amendment. 

Accordingly, Plaintiffs seek appropriate declaratory and injunctive relief. 

 The Federal Election Commission has moved to dismiss, arguing that Plaintiffs have 

failed to state a claim. [Dkt. No. 15 (“MTD”)] They have no claim, the Commission argues, 

because § 441e is constitutional: Congress has “plenary power” over immigration and national 

security and, as a result, effectively unreviewable discretion to prohibit political speech by 

foreign nationals. This defense is, frankly, puzzling. Longstanding bodies of Supreme Court 

precedent hold that foreign nationals who lawfully reside in the United States have First 

Amendment rights; that the First Amendment embraces the right to make political contributions 

and expenditures; and that constitutional rights cannot be superseded by vague assertions of 

“plenary power.” The Commission’s motion flatly ignores these bodies of law. It fails to engage 

with Plaintiffs’ claim, instead citing inapposite cases about non-resident foreign nationals or 

aliens who were not engaged in First Amendment activity at all. And it resorts throughout to 

trumped-up fearmongering, which may be common currency in the court of public opinion, but 

cannot substitute for constitutional argument in a court of the United States. 

Case 1:10-cv-01766-RMU Document 20 Filed 01/18/11 Page 13 of 62
 2

 It is easy in a case like this to fall back upon conclusory assertions of legislative 

prerogative; upon fear of Nazi propaganda and terror-supporting Iranians and covert coups 

launched from Beijing; upon a parochialism that would deny to “others” the right to make their 

voices heard. But that is precisely why courts have developed doctrines that test and probe such 

claims—for their truth, for their good-faith, and for their sufficiency as a basis to strip lawful 

residents of the United States of their fundamental civil rights. This case presents the question 

not whether § 441e is a “good idea,” but rather whether the Alien Gag Law can be reconciled 

with First Amendment doctrine. It cannot. 

 Because the Commission fails entirely to engage with the relevant precedent, Plaintiffs 

respond by first presenting the well-established doctrinal framework that governs their claim. 

Thereunder, this Court must determine (I) whether Plaintiffs possess First Amendment rights 

(they do); (II) whether the conduct banned by § 441e is protected by the First Amendment (it is); 

and (III) whether the Government can overcome the presumption of unconstitutionality that 

attaches to restrictions on First Amendment activity by showing that they are narrowly tailored to 

further a compelling interest (it cannot). Finally, Plaintiffs explain why the Commission’s 

attempts to short-circuit this constitutional analysis are irreconcilable with settled precedent. 

 The Commission’s defense of § 441e’s constitutionality as applied to Plaintiffs thus fails 

as a matter of law, and its motion to dismiss must be denied. Moreover, for the same reasons, 

the statute violates Plaintiffs’ First Amendment rights. In light of that conclusion (and the 

undisputed facts about Plaintiffs’ residency, employment, and immigration status), Plaintiffs are 

further entitled to judgment in their favor as a matter of law. As such, Plaintiffs have moved for 

summary judgment and hereby submit this memorandum both in opposition to the Commission’s 

motion to dismiss and in support of Plaintiffs’ motion for summary judgment. 

Case 1:10-cv-01766-RMU Document 20 Filed 01/18/11 Page 14 of 62
 3

FACTUAL BACKGROUND

I. PLAINTIFFS 

 Plaintiffs are foreign nationals who have been authorized to live and work in the United 

States for periods of at least three years. Each holds strong political views, but is precluded by 

federal law from expressing those views through contributions to political candidates or 

independent expenditure that advocate for (or oppose) their election. 

 Plaintiff Bluman is a Canadian citizen who has been lawfully residing in the United 

States since November 2009. Plaintiffs’ Statement of Material Facts (“SMF”) ¶¶ 1, 2-4. Prior to 

that time, he lived in the U.S. while attending Harvard Law School. Id. ¶ 2. His authorization 

permits him to remain in the country until November 2012, after which he anticipates applying 

for a second three-year term. Id. ¶¶ 6-7. He works as an attorney and is admitted to the New 

York Bar. Id. ¶¶ 8-9. Mr. Bluman holds progressive political views, and seeks to express them 

by contributing to three candidates for federal and state office. Id. ¶¶ 10-12. Additionally, he 

wants to print and then distribute flyers in support of President Obama’s reelection campaign. 

Id. ¶ 13. However, he is foreclosed from all of these activities by federal law. Id. ¶ 15. 

 Plaintiff Steiman is also a Canadian citizen, and holds dual citizenship from the State of 

Israel. Id. ¶ 16. She has resided in the United States since June 2009, and works as a doctor at a 

hospital in New York, at which she is completing her medical residency. Id. ¶¶ 17-19. She is 

authorized to remain in the country until June 2012, and that term is likely to be extended when 

she chooses her area of specialization. Id. ¶ 21. Dr. Steiman is a conservative, and wants to 

express her views by contributing to two federal candidates and a party-affiliated political 

committee. Id. ¶¶ 23-28. Further, she wants to independently spend money to help elect fiscally 

conservative candidates by donating to the independent Club for Growth. Id. ¶ 29. Like Mr. 

Bluman, she is foreclosed by federal law from doing any of the above. Id. ¶ 31. 

Case 1:10-cv-01766-RMU Document 20 Filed 01/18/11 Page 15 of 62
 4

II. THE STATUTORY FRAMEWORK 

Section 441e prohibits all foreign nationals, other than lawful permanent residents, from: 

(i) making any “contribution or donation of money or other thing of value . . . in 

connection with a Federal, State, or local election”; 

(ii) making “a contribution or donation to a committee of a political party”; or 

(iii) making any “expenditure,” “independent expenditure,” or “disbursement for 

an electioneering communication.”1

 

A willful violation of § 441e is punishable by a civil penalty not exceeding the greater of 

$10,000 or 200 percent of any sum involved in the violation, and is punishable criminally by up 

to five years’ imprisonment. 2 U.S.C. § 437g(a)(6), (d). 

The history of the statute shows that Congress’ purpose was to limit domestic political 

activity by overseas actors. The prohibitions embodied in § 441e trace their origins to 1966, 

when Congress amended the Foreign Agents Registration Act (“FARA”). See Pub. L. No. 89-

486, 80 Stat. 244. In the 1966 amendments, Congress responded to evidence that foreign 

governments and foreign corporations had contributed large sums to federal candidates, banning 

any “agent of a foreign principal” from “mak[ing] any contribution of money or other thing of 

 1

 Section 441e in its entirety provides: 

(a) Prohibition 

It shall be unlawful for— 

 (1) a foreign national, directly or indirectly, to make— 

 (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. 

2 U.S.C. §441e. 

Case 1:10-cv-01766-RMU Document 20 Filed 01/18/11 Page 16 of 62
 5

value, or promis[ing] expressly or impliedly to make any such contribution, in connection with 

an election to any political office.” Id. § 8(a), 80 Stat. at 248; see Lori F. Damrosch, Politics 

Across Borders: Nonintervention and Nonforcible Influence over Domestic Affairs, 83 Am. J. 

Int’l L. 1, 21-23 (1989) (describing legislative history). The term “foreign principal” was 

defined by FARA to embrace a host of overseas entities: “the government of a foreign country, a 

political party of a foreign country, a person domiciled abroad, or any foreign business, 

partnership, association, corporation, or political organization.” 52 Stat. 632-33 (1938).2 Thus, 

the amendments prohibited these overseas entities from participating in U.S. politics by 

employing agents inside the country to make contributions to candidates. 

Congress soon discovered an apparent loophole in FARA: The Justice Department had 

interpreted the term “foreign principal” to include only those overseas entities who in fact had 

agents in the United States. See 120 Cong. Rec. 8782 (Mar. 28, 1974) (statement of Sen. 

Bentsen). As a result, overseas entities were free to make unlimited contributions directly,

simply by bypassing use of an agent. Id. (“We have heard of the hundreds of thousands of 

dollars sloshing around from one country to another . . . .”). To close this loophole, Congress in 

1974 applied FARA’s contribution ban to all “foreign nationals.” See id. (emphasizing need to 

fix the “giant loophole” left by FARA); Federal Election Campaign Act Amendments of 1974, 

Pub. L. No. 93-443, § 101(d), 88 Stat. 1263, 1267. The amendment thus extended the ban on 

political contributions to 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 1267.3

 2

 An “agent of a foreign principal” was defined as “any person who acts or engages or agrees to act as a 

public-relations counsel, publicity agent, or as agent, servant, representative, or attorney for a foreign principal or for 

any domestic organization subsidized directly or indirectly in whole or in part by a foreign principal.” 52 Stat. 633. 

3

 “Permanent residence” is an immigration classification, developed in the twentieth century, that permits 

certain aliens to reside in the U.S. indefinitely, i.e., as immigrants. See 8 U.S.C. § 1101(a)(13)(C). The law also 

recognizes various categories of aliens who are authorized to reside in the U.S. on a temporary basis, i.e., as 

nonimmigrants. See id. § 1101(a)(15). 

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Although the 1974 amendment succeeded in meeting Congress’ objective of closing the 

loophole available to overseas entities, it also had broader effects. By extending the contribution 

ban from just overseas entities and their agents, to all foreign nationals except permanent 

residents regardless of where they live, the ban swept in lawful but non-permanent residents of 

the U.S., who had not previously been covered by the ban. The legislative history indicates that 

Congress paid little attention to this particular expansion of the law’s applicability. 

 In introducing the amendment, Senator Lloyd Bentsen argued that foreign nationals 

“cannot vote in our elections so why should we allow them to finance our elections?” 120 Cong. 

Rec. 8783 (Mar. 28, 1974). He explained, however, that his amendment would “exempt 

foreigners with resident immigrant status” because such individuals, “who have lived here for 

years and who spend most of their adult lives in this country” and “pay American taxes,” should 

be permitted to make political contributions. Id. Senator Howard Cannon pointed out that, by 

excluding only permanent residents from the definition of “foreign national,” the ban would 

apply to “a pretty substantial number of people who were here properly in this country . . . who 

are not here as permanent residents.” Id. He worried that the amendment might go “further than 

would be intended by Members of this body if they were here to hear the discussion on it.” Id. at 

8784. Senator Bentsen responded by insisting that “th[e] amendment was carefully drawn to try 

to exclude certain people who might be legally in this country passing through here as tourists,” 

id., apparently missing Senator Cannon’s point—that the ban would apply not just to foreign 

non-residents such as tourists, but also to non-permanent residents of the United States. 

Congress then promptly and unanimously passed the amendment. Id. at 8786. This brief floor 

exchange between Senators Bentsen and Cannon appears to be the only point at which Congress 

considered the amendment’s impact on non-permanent resident aliens. 

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 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. 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. 96 (2002). Among other things, BCRA expanded the ban 

beyond contributions, to expenditures and 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. See Contribution Limitations and Prohibitions, 67 Fed. Reg. 

69928, 69940 (Nov. 19, 2002). At neither time, however, did Congress revisit the ban’s 

applicability to lawful non-permanent residents or make any findings relevant to that question. 

ARGUMENT

To the extent that the Alien Gag Law prohibits contributions and expenditures by foreign 

nationals residing abroad, it is entirely unobjectionable. Such a restriction—which was the 

central objective of Congress in enacting the predecessor to § 441e and reflects the vast majority 

of the law’s applications—is valid, for it has long been accepted that aliens outside the United 

States have no rights at all under the First Amendment. See United States ex rel. Turner v. 

Williams, 194 U.S. 279, 292 (1904). However, while Congress properly carved out permanent 

resident aliens from the statute, it overlooked that many lawful residents are not permanent

residents under the immigration laws. Text, history, and precedent make clear that such 

individuals who—like Plaintiffs here—live, work, and pay taxes in the United States, are just as 

entitled to First Amendment protections as permanent residents and citizens. Nor can there be 

any doubt that flat bans on contributions and expenditures—like those imposed by § 441e—are 

presumptively unconstitutional when applied to individuals protected by the First Amendment. 

To overcome this presumption, the Government must satisfy exacting scrutiny by identifying a 

sufficiently weighty interest that the Alien Gag Law is carefully tailored to protect. It cannot. 

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Plaintiffs’ challenge follows the clear doctrinal path set by the portion of the Supreme 

Court’s decision in McConnell v. FEC, 540 U.S. 93 (2003), that addressed Congress’ attempt in 

§ 318 of BCRA to ban political contributions by individuals under the age of 18. Like the Alien 

Gag Law, enacted by § 303 of BCRA, § 318 imposed a flat ban on contributions by an entire 

category of individuals who are unable to vote. Chief Justice Rehnquist, joined by seven other 

Justices,4

 analyzed the First Amendment claim in three straightforward steps. 540 U.S. at 231-

32. First, he affirmed that “[m]inors enjoy the protection of the First Amendment,” id. at 231, 

citing the speech rights of minors recognized in other, non-electoral contexts, id. (citing Tinker v. 

Des Moines Indep. Community Sch. Dist., 393 U.S. 503, 511-513 (1969)). Second, he reiterated 

that restrictions on political contributions “impinge on the protected freedoms of expression and 

association” and therefore are subject to “heightened scrutiny,” 540 U.S. at 231, citing for that 

proposition the seminal opinion in Buckley v. Valeo, 424 U.S. 1, 20-22, 25 (1976) (per curiam). 

Third, he considered whether the Government’s proffered reason for the ban—to prevent parents 

from circumventing contribution limits—could withstand scrutiny. 540 U.S. at 232. It could 

not: Congress had only “scant” evidence that the “claimed evil” existed, and the flat ban was in 

any event overinclusive given the existence of narrower alternative measures. Id.

Under the same mode of analysis, the Alien Gag Law must fall as applied to lawful 

residents of the United States like Plaintiffs. First, as shown in Part I, such aliens “enjoy the 

protections of the First Amendment.” Second, as shown in Part II, § 441e imposes restrictions 

that “impinge on the protected freedoms of expression and association” and therefore must 

satisfy “heightened scrutiny.” Third, none of the reasons that the Government could offer for the 

ban withstands this scrutiny. Finally, while the Commission’s motion to dismiss makes several 

attempts to evade this analytical framework, each is irreconcilable with established law. 

 4

 Justice Thomas concurred in the judgment. 540 U.S. at 265 (opinion of Thomas, J.)., 

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I. THE FIRST AMENDMENT PROTECTS ALL LAWFUL RESIDENTS OF THE 

UNITED STATES, INCLUDING PLAINTIFFS. 

There can be no legitimate debate over the fact that Plaintiffs—as lawful residents of the 

United States—are entitled to the same First Amendment protections as citizens. Constitutional 

text directs as much; history bolsters this reading; and an unbroken line of direct precedent from 

the Supreme Court, consistently followed by lower courts (including this Court), confirms the 

proposition. Indeed, the Commission concedes this point in its motion to dismiss (although fails 

to appreciate its significance). MTD 27 (“Temporarily resident aliens do have First Amendment 

rights to speak out on the issues of the day . . . .”). 

A. Text: The Constitution Does Not Limit Free Speech Rights to Citizens.

 The constitutional text does not limit the protections of the First Amendment to American 

citizens. See U.S. Const. amend. I (“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.”); Citizens United v. FEC, 130 S. Ct. 876, 929 (2010) (Scalia, J., 

concurring) (“The Amendment is written in terms of ‘speech,’ not speakers. Its text offers no 

foothold for excluding any category of speaker . . . .”). This is notable, because the Constitution 

elsewhere does distinguish between “Persons” generally and “Citizens” in particular. Compare 

U.S. Const. art. I, § 2, cl. 2 (“No Person shall be a Representative who shall not have attained to 

the Age of twenty five Years, and been seven Years a Citizen of the United States . . . . ”); U.S. 

Const. amend. XIV, § 1 (“No State shall make or enforce any law which shall abridge the 

privileges or immunities of citizens of the United States . . . .”), with Bridges v. Wixon, 326 U.S. 

135, 161 (1945) (Murphy J., concurring) (“None of these provisions [of the Bill of Rights] 

acknowledges any distinction between citizens and resident aliens. They extend their inalienable 

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privileges to all ‘persons’ and guard against any encroachment on those rights by federal or state 

authority.”). Where rights are limited to citizens, the Constitution says so. 

 The particularly broad text of the First Amendment reflects the Framers’ view that 

government restrictions on the flow of information are incompatible with a free society. See 

Abrams v. United States, 250 U.S. 616, 630 (1919) (Holmes, J., dissenting) (“[T]he ultimate 

good desired is better reached by free trade in ideas . . . [T]he best test of truth is the power of 

the thought to get itself accepted in the competition of the market . . . . That at any rate is the 

theory of our Constitution.”). Both the letter and the spirit of the First Amendment require that 

resident aliens be afforded the same freedoms of speech and association guaranteed to citizens. 

B. History: At the Founding and Beyond, Aliens Broadly Participated in First 

Amendment Activities, Including Domestic Political Expression.

From the very founding of the Republic, aliens routinely engaged in a variety of First 

Amendment activities. This historical practice corroborates the textual evidence that resident 

aliens are included within the Amendment’s reach. 

For example, consider the First Amendment right to petition the government. McDonald 

v. Smith, 472 U.S. 479, 482 (1985) (“The right to petition is cut from the same cloth as the other 

guarantees of that Amendment, and is an assurance of a particular freedom of expression.”). 

Aliens exercised this basic right in the earliest years of the Republic and even beforehand. See 

generally Michael J. Wishnie, Immigrants and the Right to Petition, 78 N.Y.U. L. Rev. 667 

(2003). Petitioning “never depended on citizenship status,” whether in the colonial period, under 

the Articles of Confederation, or under state constitutions at the time. Id. at 692. Indeed, the 

First Congress considered—and granted—many petitions from aliens. Id. at 698-701 (giving 

examples of petitions from British, French, and German citizens). 

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Furthermore, aliens before and after the Founding were permitted even to vote. This 

practice began during the colonial period. See Jamin B. Raskin, Legal Aliens, Local Citizens: 

The Historical, Constitutional and Theoretical Meanings of Alien Suffrage, 141 U. Pa. L. Rev. 

1391, 1399 (1993). In colonial South Carolina, for example, “it was said, that with only a 

property qualification every pirate of the Red Sea operating from a Carolina base could vote.” 

Id. (quoting Chilton Williamson, American Suffrage from Property to Democracy 1760-1860, at 

53 (1960)). Congress endorsed political participation of aliens in the Northwest Ordinance, 

which allowed non-citizens meeting residency and property requirements the right to vote and 

even to serve in office. See Gerald L. Neuman, “We Are the People”: Alien Suffrage in German 

and American Perspective, 13 Mich. J. Int’l L. 259, 295 (1992) (citing Act of Aug. 7, 1789, ch. 

8, 1 Stat. 50, 51 n.(a) (1789)). Aliens were also authorized to participate in state constitutional 

conventions. See Raskin, supra, at 1402. Finally, many States continued to allow alien voting 

after the Founding, some as late as the twentieth century. See generally Leon E. Aylsworth, The 

Passing of Alien Suffrage, 25 Am. Pol. Sci. Rev. 114 (1931). 

To be sure, the right to political participation can be—and often has been—denied to 

persons endowed with the right to political expression. E.g., Minor v. Happersett, 88 U.S. 162, 

170, 176 (1875) (holding that women are “entitled to all the privileges and immunities of 

citizenship” yet are not “invested with the right of suffrage”); Akhil Reed Amar, The Bill of 

Rights and the Fourteenth Amendment, 101 Yale L.J. 1193, 1279-80 (1992) (noting that women 

were “central exercisers of First Amendment freedoms” before women’s suffrage, and that 

blacks exercised free-speech rights before the Civil War and Reconstruction Amendments). But 

the converse does not follow: The Framers would not have intended to deny freedom of speech 

to a class of persons, like aliens, who were regularly entitled to vote at the time. 

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C. Precedent: The Supreme Court Has Long Accorded First Amendment Rights 

to Lawful Residents.

In keeping with the text and history of the Constitution, the courts have consistently held 

that, while aliens have virtually no constitutional rights prior to entering the United States, aliens 

lawfully residing in this country are protected in full by the Bill of Rights, including the First 

Amendment, to the same degree as American citizens. Even in cases that upheld the power of 

the federal Government to exclude from the country “aliens whose race or habits render them 

undesirable”—and which reflect one of the most xenophobic periods in our Nation’s history—

the Supreme Court simultaneously affirmed that, once admitted for residence, aliens may not be 

subjected to government action that “pass[es] out of the sphere of constitutional legislation.” 

Wong Wing v. United States, 163 U.S. 228, 237 (1896); see also Fong Yue Ting v. United States, 

149 U.S. 698, 724 (1893) (“[A]liens 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 . . . .”). 

In particular, the Supreme Court has long held that the protections of the First 

Amendment extend to resident aliens. In a case decided seventy years ago, the Supreme Court 

invoked the First Amendment to overturn a contempt conviction based upon the speech of an 

alien defendant. See Bridges v. California, 314 U.S. 252 (1941). The defendant’s alienage was 

no secret; Justice Frankfurter expressly referenced it in his dissenting opinion. Id. at 280 

(Frankfurter, J., dissenting). As the Court explained in a subsequent opinion: 

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 and by the due process clause of the Fourteenth Amendment. 

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Kwong Hai Chew v. Colding, 344 U.S. 590, 596 n.5 (1953) (quoting Bridges, 326 U.S. at 161) 

(internal quotation marks omitted); see also Harisiades v. Shaughnessy, 342 U.S. 580, 592 & 

nn.18-19 (1952) (holding that resident alien could be deported for membership in the Communist 

Party only after applying First Amendment scrutiny and concluding that speech likely to incite 

violence was unprotected (citing Dennis v. United States, 341 U.S. 494 (1951))). 

These cases have stood the test of time. The Supreme Court recently confirmed their 

vitality in United States v. Verdugo-Urquidez, 494 U.S. 259 (1990). There, the Court held that 

an alien arrested in Mexico and then involuntarily transported into the United States was not 

entitled to the protections of the Fourth Amendment. Id. at 274. The defendant was “a citizen 

and resident of Mexico with no voluntary attachment to the United States” and was therefore not 

entitled to the constitutional protection he sought. Id. at 274-75. The Court further suggested 

that aliens with such profiles cannot claim the protections of the First Amendment either. Id. at 

265. In so holding, however, the Court reaffirmed that these provisions extend not only to 

citizens, but also to “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. 

Giving that vague standard a more concrete meaning, the Court described Bridges as standing for 

the proposition that “resident aliens have First Amendment rights.” Id. at 271 (citing Bridges, 

326 U.S. at 148). 

A consistent line of lower court decisions likewise holds that the First Amendment 

protects aliens while they lawfully reside in the United States. For example, in American-Arab 

Anti-Discrimination Committee v. Reno, 70 F.3d 1045 (9th Cir. 1995), the court rejected the 

suggestion that aliens residing in the United States could not assert First Amendment rights as a 

defense to deportation. Id. at 1063-65. The fact that the federal Government possesses plenary 

Case 1:10-cv-01766-RMU Document 20 Filed 01/18/11 Page 25 of 62
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power over immigration did not change the analysis. Id. Rather, the Ninth Circuit explained that 

“[t]he Supreme Court has consistently distinguished between aliens in the United States and 

those seeking to enter from outside the country, and has accorded to aliens living in the United 

States those protections of the Bill of Rights that are not, by the text of the Constitution, 

restricted to citizens.” Id. at 1063-64. Other courts have reached the same holding. E.g.,

Parcham v. INS, 769 F.2d 1001, 1004 (4th Cir. 1985) (agreeing that “aliens residing in this 

country enjoy the protection of the First Amendment”); In re Weitzman, 426 F.2d 439, 449 (8th 

Cir. 1970) (opinion of Blackmun, J.) (“The Supreme Court has stated clearly that resident aliens 

are to be accorded the first amendment guarantees of free speech and free press.”); see also 

Edwards v. Johnson, 209 F.3d 772, 779 (5th Cir. 2000) (adjudicating, on the merits, a First 

Amendment claim of alien awaiting deportation). 

This Court, too, has rejected the notion that resident aliens are somehow entitled to lesser 

First Amendment protections than citizens. Rafeedie v. INS, 795 F. Supp. 13, 22 (D.D.C. 1992) 

(“Plaintiff [a resident alien] is entitled to the same First Amendment protections as United States 

citizens, including the limitations imposed by the overbreadth and vagueness doctrines.”); see 

also Brunnenkant v. Laird, 360 F. Supp. 1330, 1332 (D.D.C. 1973) (noting that Government was 

correct to concede that First Amendment rights of an immigrant alien are “to be judged by the 

same standards applicable to a citizen of the United States, born or naturalized”). 

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 concurring in the judgment) (quoting Bridges, 326 

U.S. at 148 (majority opinion)). The precedent is uniform, unambiguous, and controlling. There 

is no authority to the contrary, and the Commission offers none. 

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D. Plaintiffs Lawfully Reside and Work in the United States, and Therefore 

Qualify for First Amendment Protection.

Plaintiffs are lawful residents of the United States. Thus, under the law articulated above, 

they are entitled to the full protections of the First Amendment during their time in the country. 

Mr. Bluman was admitted to the country as a “TN-status” nonimmigrant. SMF ¶ 3; 8 

U.S.C. § 1184(a)(1); 8 C.F.R. § 214.6. This status permits Canadian citizens to enter the United 

States to engage in certain professional activities. Such individuals may reside within the United 

States for up to three years. 8 C.F.R. § 214.6(e). Moreover, extensions are permitted, and 

“[t]here is no specific limit on the total period of time an alien may be in TN status provided the 

alien continues to be engaged in TN business activities . . . and otherwise continues to properly 

maintain TN nonimmigrant status.” Id. § 214.6(h)(1)(iv). Mr. Bluman was admitted for a period 

of three years, and anticipates applying for an additional three-year term. SMF ¶¶ 6-7. He is a 

member of the Bar of the State of New York, lives in Manhattan, and works as an associate 

attorney for a law firm in New York City. Id. ¶¶ 4, 8-9. 

Dr. Steiman was admitted to the United States as a “J1 status” nonimmigrant, which is a 

status available to “a bona fide student, scholar, trainee, teacher, professor, research assistant, 

specialist, or leader in a field of specialized knowledge or skill, or other person of similar 

description” who comes to the United States “for the purpose of teaching, instructing or 

lecturing, studying, observing, conducting research, consulting, demonstrating special skills, or 

receiving training.” 8 U.S.C. § 1101(a)(15)(J); see also SMF ¶ 17. Dr. Steiman was admitted 

for a period of three years, and that term is subject to further potential extension for an additional 

four years. SMF ¶ 21. She is a member of the American Medial Association and is currently 

fulfilling her medical residency at a hospital in New York City. Id. ¶¶ 18-19, 22. 

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Because Plaintiffs live and work in the United States, they are plainly “residents.” The 

Government itself admits as much: It characterizes TN and J1 aliens as “Short-term Residents” 

in its annual statistical reports. See Dep’t of Homeland Security, Office of Immigration 

Statistics, Nonimmigrant Admissions to the United States: 2009, App. A (Apr. 2010), available 

at http://www.dhs.gov/xlibrary/assets/statistics/publications/ni_fr_2009.pdf. By contrast, other 

nonimmigrants are classified as “Non-residents.” Id. The Government also treats Plaintiffs as 

residents for tax purposes. See I.R.C. § 7701(b)(1), (3); SMF ¶¶ 5, 20. 

To be sure, probably not all “Short-term Residents” under the immigration laws satisfy 

the Verdugo-Urquidez standard of having developed “sufficient connections” to be considered 

part of a “national community.” For example, aliens admitted as “A” or “G” nonimmigrants—

i.e., diplomats and other representatives of foreign governments, 8 U.S.C. § 1101(a)(15)(A), 

(G)—are present in the United States as agents of foreign powers, and seek not to be part of a 

“national community” but rather to represent their own foreign communities. As such, they 

would fall outside Verdugo-Urquidez’s definition despite otherwise appearing to be “residents.” 

Likewise, some temporary workers or visiting students may be admitted for periods of time so 

short that they cannot truly be considered “residents” for purposes of the First Amendment. 

Whatever the precise location of the constitutional “residency” line—and VerdugoUrquidez does require that such a line be drawn—Plaintiffs are well inside it. They live in the 

United States; work in the United States; pay taxes in the United States; worship in the United 

States; participate in civic life in the United States—and will be doing so for multiple years. If 

Congress wants to gag aliens who lack constitutional protections, it may do so; but where, as 

here, a law attempts to ban the speech of aliens who are constitutionally protected, it is subject to 

the exacting scrutiny mandated by the First Amendment. 

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II. THE FIRST AMENDMENT PROTECTS THE EXPRESSION OF POLITICAL 

VIEWS THROUGH CONTRIBUTIONS AND EXPENDITURES. 

The second undeniable principle of law that underlies Plaintiffs’ case is that the First 

Amendment protects political contributions and expenditures as acts of political expression and 

association. The central premise of the foundational Buckley decision is that such spending 

“operate[s] in an area of the most fundamental First Amendment activities,” 424 U.S. at 14, and 

“implicate[s] fundamental First Amendment interests,” id. at 23. And this principle has been 

repeatedly affirmed over several decades. Limitations on campaign contributions and 

expenditures are accordingly subject to demanding scrutiny, and any suggestion that such 

restrictions merely regulate political participation, as opposed to political expression, is 

irreconcilable with settled precedent. 

A. A Complete Ban on Contributions Is Subject to Strict Scrutiny Under the 

First Amendment.

As the Supreme Court explained in Buckley, a political contribution lies at the core of the 

First Amendment as both an act of political expression and an act of political association. 424 

U.S. at 23. Limitations on such activities are generally “subject to the closest scrutiny.” Id. at 

25. To be specific, the Court has held that limitations on the amounts of political contributions 

are subject to something more than intermediate scrutiny but less than strict scrutiny—they must 

be “closely drawn” to accomplish a “sufficiently important interest.” Id. Reasonable 

contribution limits may be sustained under this level of scrutiny in light of the Government’s 

interest in preventing political corruption or the appearance of such corruption. Id. at 26-27. 

However, the Court has held that highly restrictive contribution limits cannot satisfy scrutiny 

under Buckley, as “a contribution of say, $250 (or $450) to a candidate’s campaign [is un]likely 

to prove a corruptive force.” Randall v. Sorrell, 548 U.S. 230, 261 (2006) (plurality opinion). 

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Moreover, while limits on the amounts of political contributions are subject to less than 

strict scrutiny, the logic of the Court’s decisions dictates that flat bans on contributions 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, . . . . [t]he quantity of communication by the contributor does not increase perceptibly 

with the size of his contribution.” 424 U.S. 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. at 21 (emphasis added). However, such a rationale does not apply to a total ban on 

contributions, which completely deprives an individual of the “fundamental First Amendment 

interests” in expressing support for their candidate of choice through even a nominal donation. 

Id. at 23. Rather, complete bans on political contributions, like restrictions on expenditures, 

reduce “the quantity of political speech.” Id. at 39. Under Buckley, § 441e’s total prohibition of 

Plaintiffs’ desired contributions, see SMF ¶¶ 12, 27-28, must be subjected to strict scrutiny.

B. A Complete Ban on Expenditures Is Subject to Strict Scrutiny Under the 

First Amendment.

Even more so than limits on contributions, 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. “[I]t can hardly be doubted that the [First 

Amendment] has its fullest and most urgent application precisely to the conduct of campaigns for 

political office.” Monitor Patriot Co. v. Roy, 401 U.S. 265, 272 (1971). Expenditure limits, not 

to mention flat bans, must therefore “satisfy the exacting scrutiny applicable to limitations on 

core First Amendment rights of political expression,” Buckley, 424 U.S. at 44-45, i.e., strict 

scrutiny. See FEC v. Wisc. Right to Life, Inc., 551 U.S. 449, 461 (2007) (plurality opinion). 

Case 1:10-cv-01766-RMU Document 20 Filed 01/18/11 Page 30 of 62
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In theory, a law restricting expenditures could survive strict scrutiny if the Government 

were able to prove that it “furthers a compelling interest and is narrowly tailored to achieve that 

interest.” Id. at 464. In practice, the Supreme 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 recently overruled in Citizens United, 130 S. 

Ct. at 913 (majority opinion). Thus, any limits on independent expenditures should be regarded 

as presumptively unconstitutional, and that is true a fortiori of § 441e’s complete ban on 

Plaintiffs’ desired direct expenditures on leafleting activity and donations to independent 

political groups like the Club for Growth, see SMF ¶¶ 13, 29. 

III. THE GOVERNMENT CANNOT MEET ITS BURDEN TO JUSTIFY THE 

RESTRICTIONS IN THE ALIEN GAG LAW. 

The First Amendment plainly (i) applies to Plaintiffs and (ii) protects the speech banned 

by § 441e. The only remaining question, then, is whether the statute can survive the rigors of 

strict scrutiny. In fact, the Supreme Court itself framed the question in those terms, in the course 

of declining to resolve the issue in Citizens United. The Court noted, citing § 441e, that it “need 

not reach the question” whether the Government could justify the law as necessary to further “a 

compelling interest.” 130 S. Ct. at 911. 

In order to justify the Alien Gag Law under strict scrutiny, the Government must identify 

a compelling state interest in precluding Plaintiffs’ participation in the political marketplace of 

ideas, and prove that the statutory restrictions are narrowly tailored to safeguard that interest.5

 

 5

 To the extent that this Court disagrees that strict scrutiny applies to § 441e’s flat ban on political 

contributions, the governing test would be whether the law is closely drawn to further a sufficiently important 

interest. However, as explained in this Part, the outcome is the same under either test. 

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The Supreme Court has emphasized that strict scrutiny is the “most rigorous and exacting 

standard of constitutional review.” Miller v. Johnson, 515 U.S. 900, 920 (1995). Under this 

demanding standard, the interest served must be truly compelling and, even then, a restriction of 

speech is not permitted where it is “plausible” that the same interest can be furthered by a lesser 

imposition on speech. United States v. Playboy Ent’mt Group, Inc., 529 U.S. 803, 813-14 

(2000). Moreover, “[p]recision of regulation must be the touchstone in an area so closely 

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

Government “may not suppress lawful speech as the means to suppress unlawful speech,” 

Ashcroft v. Free Speech Coalition, 535 U.S. 234, 255 (2002), and a court applying strict scrutiny 

“must ensure that a compelling interest supports each application of a statute restricting speech,” 

Wisc. Right to Life, Inc., 551 U.S. at 478. As a result, “[o]nly rarely are statutes sustained in the 

face of strict scrutiny. . . . [S]trict-scrutiny review is strict in theory but usually fatal in fact.” 

Bernal v. Fainter, 467 U.S. 216, 219 n.6 (1984) (internal quotation marks omitted). 

As commentators have observed, the Government cannot honestly meet its burden with 

respect to the Alien Gag Law.6

 Indeed, the Commission hardly tries to do so, arguing only that 

the law is “rational” and then adding—in a conclusory footnote—that it also satisfies heightened 

scrutiny. MTD 22 n.14. In contending that the Alien Gag Law is supported by a rational basis, 

the Commission identifies two distinguishing features of Plaintiffs—their inability to vote, and 

their potential “foreign” perspective (MTD 18-27); yet neither feature gives rise to a legitimate 

interest in prohibiting Plaintiffs’ political speech, much less a sufficiently weighty interest that is 

furthered with any precision by this statute. 

 6 See, e.g., Richard L. Hasen, Citizens United and the Illusion of Coherence, 109 Mich. L. Rev. 581, 605-

610 (2011) (noting that it is “difficult to see” how the arguments in favor of foreign-spending ban could succeed 

under current law); see also generally Bruce D. Brown, Alien Donors: The Participation of Non-Citizens in the U.S. 

Campaign Finance System, 15 Yale L. & Pol’y Rev. 503 (1997); cf. Note, “Foreign” Campaign Contributions and 

the First Amendment, 110 Harv. L. Rev. 1886 (1997). 

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A. The Government Cannot Prohibit Political Speech Merely Because the 

Speaker Lacks the Right To Vote.

The legislative history of § 441e’s predecessor suggests Congress believed that it could 

(and should) restrict the political contributions and expenditures of foreign nationals because 

foreign nationals do not possess the right to vote. See, e.g., 120 Cong. Rec. 8783 (Mar. 28, 

1974) (statement of Sen. Bentsen) (“They cannot vote in our elections so why should we allow 

them to finance our elections?”); id. at 8784 (statement of Sen. Griffin) (“I agree with [Sen. 

Bentsen] that, by and large, our political process should be in the hands of those who . . . have 

the right to vote.”). Likewise, the Commission in defending the statute argues that a ban on 

contributions and expenditures by foreign nationals “follows inexorably” from the fact that they 

are not eligible to “directly participate in the nation’s processes of self-government.” MTD 18. 

The suggestion is that, because the “right to govern is reserved to citizens,” Foley v. Connelie, 

435 U.S. 291, 297 (1978), non-citizens may also be stripped of the right to associate with and 

financially support candidates for political office, directly or independently. 

As a justification for the Alien Gag Law, this rationale fails. First, it confuses the right to 

participate in the marketplace of ideas with the right to make the ultimate purchase. The latter, 

as the Commission correctly observes, is a special privilege of citizens. The former is a core 

speech right, available to voters and non-voters alike. Second, § 441e is not in any event closely 

or narrowly drawn to target non-voters. Rather, it is both overinclusive and underinclusive, and 

the Commission makes no genuine attempt to show otherwise. MTD 22 n.14. 

1. Even those who cannot vote are entitled to express their views on 

matters of public concern. 

There is a basic flaw in the suggestion that those who cannot vote are not entitled to 

contribute and spend money in relation to an election: It negates the key insight of Buckley that 

the right to engage in such activities is an application of the fundamental First Amendment rights 

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to speak and associate. Once it is accepted (as it must be) that campaign contributions and 

independent expenditures are a form of political speech, it is simply a non sequitor to observe 

that plaintiffs cannot vote, as the right to political expression is not dependent on the right to 

political participation. One need not be able to decide a matter in order to have a right to speak

about it. Numerous real-life examples demonstrate this point: 

1. Children, of course, cannot run for elective office or vote in elections. See U.S. 

Const. art. I, §§ 2-3; id. art. II, § 1, id. amend. XXVI. Yet the Supreme Court did not hesitate to 

extend to children the same rights as adults to contribute to candidates of their choice. 

McConnell, 540 U.S. at 231-32. The Court did not analyze whether minors have the capacity to 

participate in the political process. Rather, following Buckley, the Court affirmed that minors 

have First Amendment rights in general and proceeded to apply heightened scrutiny. Id. 

2. Corporations cannot vote or run for office either. Yet, although the dissent in 

Citizens United raised that very point, 130 S. Ct. at 930 (Stevens, J., concurring in part and 

dissenting in part) (“They cannot vote or run for office.”), the Supreme Court held that 

corporations have the same rights as natural persons to make independent expenditures, id. at 

917 (majority opinion). Again, the Court did not frame the question in terms of the right to 

participate in the political process, but rather in terms of the right to speak. The value of speech 

“[did] not depend upon the identity of its source.” Id. at 904 (quoting First Nat’l Bank of Boston 

v. Bellotti, 435 U.S. 765, 777 (1978)) (internal quotation marks omitted). 

3. Citizens who live in one State or municipality are not eligible to participate in the 

political processes of another jurisdiction. For example, a resident of New York cannot vote in a 

gubernatorial election in Iowa, a federal Senate election in Massachusetts, or a mayoral race in 

Los Angeles. Thus, if the right to make contributions and expenditures flowed from the right to 

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“directly participate” in self-government, that New Yorker could be prohibited from donating 

money or running advertisements in connection with those campaigns. Yet, not only is such 

cross-jurisdictional speech extraordinarily routine,7

 the only federal court to have considered a 

ban on it found the law unconstitutional. In Vannatta v. Keisling, 151 F.3d 1215 (9th Cir. 1998), 

the Ninth Circuit considered an amendment to Oregon’s Constitution that prohibited out-ofdistrict campaign contributions in state elections. Id. at 1218. The court applied heightened 

scrutiny and invalidated the law, distinguishing cases relating to political participation as 

implicating “the right to vote and not the right to First Amendment speech.” Id.

4. Residents of the District of Columbia have no congressional representation and no 

right to vote for members of the House of Representatives or the Senate, because the District is 

not a “State.” See U.S. Const. art. I, § 8, cl. 17. Yet many in this country would surely find it 

remarkable if (following the Commission’s logic) there were no constitutional right to engage in 

political fundraising or political advocacy in the Nation’s capital. 

All of these examples expose the false premise underlying the Commission’s defense of 

the statute. If Buckley established anything, it held that spending money in support of a 

candidate for office—whether directly as a contribution, or indirectly as an expenditure—is a 

form of speech. Accordingly, foreign nationals who reside in the United States, though unable to 

vote or wield political power, are constitutionally empowered to make their views known, 

leaving the voters to decide whether they are convinced. 

There is nothing peculiar about freedom of speech serving this persuasive, educational 

role. To the contrary, the central purpose of the First Amendment is “to supply the public need 

 7 E.g., Jonathan Allen, Oberstar Has One Donor in District, Politico.com, Oct. 13, 2010, available at 

http://www.politico.com/news/stories/1010/43557.html (reporting that, other than a single donation, “all of [Rep. 

Oberstar’s] contributions came from political action committees, Native American tribes or individual donors in 

other districts and states”); 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 Brown 

campaign were from outside Massachusetts . . . .”). 

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for information and education with respect to the significant issues of the times.” Thornhill v. 

Alabama, 310 U.S. 88, 102 (1940). In the political context, the Constitution thus guarantees that 

voters “be free to obtain information from diverse sources in order to determine how to cast their 

votes,” including sources who cannot themselves cast votes. Citizens United, 130 S. Ct. at 899. 

In short, to contend that the right to engage in political spending flows from the right to 

engage in “direct political participation” (MTD 19) is to reject the notion that such spending is a 

form of political speech, which is to reject decades of campaign-finance jurisprudence. 

2. In any event, the statutory restrictions are not tied to the right to vote. 

Even if the Government had a legitimate interest in “protecting” American democracy 

from the threat of “interference” from those who cannot directly participate in the political 

process, the Alien Gag Law is not tailored to that interest. To the contrary, the statute is patently 

overinclusive and underinclusive. See FCC v. League of Women Voters of Cal., 468 U.S. 364, 

396 (1984) (“The patent overinclusiveness and underinclusiveness of § 399’s ban ‘undermines 

the likelihood of a genuine governmental interest. . . . ’” (quoting Bellotti, 435 U.S. at 793)). 

Underinclusive: The Alien Gag Law is dramatically underinclusive, and therefore cannot 

possibly satisfy heightened (let alone strict) scrutiny. “[A] law cannot be regarded as protecting 

an interest ‘of the highest order,’ and thus as justifying a restriction upon truthful speech, when it 

leaves appreciable damage to that supposedly vital interest unprohibited.” Florida Star v. BJF, 

491 U.S. 524, 541-42 (1989) (Scalia, J., concurring in part and concurring in the judgment) 

(quoting Smith v. Daily Mail Publishing Co., 443 U.S. 97, 103 (1979)). The statute does not 

prohibit expenditures by minors, who are ineligible to vote. It does not proscribe expenditures 

by corporations, who have no capacity for self-government. And it does not bar residents of one 

state (or D.C.) from donating money or running advertisements in another jurisdiction. 

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Likewise, the statute has no application to disenfranchised felons; even the worst criminals 

remain free to spend in support of their chosen candidates while lawful residents are banned. 

Even more obvious is the statute’s express carve-out for U.S. permanent residents. Those 

individuals have no more right than temporary residents to vote or exert political authority. Yet, 

under § 441e, they are permitted to donate and to spend as much money as they wish to advocate 

for political candidates. Indeed, Congress recognized this disconnect between the purpose 

identified by the Commission and the actual statutory scheme. See 120 Cong. Rec. 8784 (Mar. 

28, 1974) (statement of Sen. Griffin) (“[B]y and large, our political process should be in the 

hands of those who are citizens and have the right to vote. Actually, our amendment does not 

really close it up that much. It acknowledges and permits contributions by those who have been 

admitted for permanent residence. So even though they do not have the right to vote in that 

instance, they would have the right to make financial contributions.”). 

Similarly, the statute is underinclusive to the extent that it permits even temporary 

residents to spend unlimited sums of money in connection with ballot initiatives. The law bans 

only spending “in connection with a Federal, State, or local election” or for “electioneering

communication.” § 441e(a)(1) (emphases added); see also FEC Advisory Op. 1984-62, n.2; 

FEC Advisory Op. 1980-95. If anything, such initiatives—which directly implement policy—

are even more vulnerable to “interference” by those who would not otherwise have any say in 

policy decisions (and cannot even vote on the initiatives). Yet, when candidates are out of the 

picture, the law gives aliens a green light. That speaks volumes about the true purposes of 

§ 441e, suggesting a possible ulterior motive such as protecting incumbents from well-funded 

adversaries,8

 unprincipled pandering to xenophobia, or at least a lack of care in setting statutory 

 8 See Colo. Republican Fed. Campaign Comm v. FEC., 518 U.S. 604, 644 n.9 (1996) (Thomas, J., 

concurring in judgment and dissenting in part) (noting that electoral regulations such as campaign-finance 

restrictions are often adopted in order to advantage incumbents). 

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parameters. Whatever the reason, “[t]his differential treatment cannot be squared with the First 

Amendment.” Citizens United, 130 S. Ct. at 906. 

Overinclusive: Even if it were permissible to ban the political speech of those who 

cannot “directly participate” (MTD 18) in the domestic political process, such a rationale would 

not support § 441e’s blanket ban on contributions and expenditures by resident aliens. This is so, 

because, while it is undoubtedly true that foreign nationals residing in the United States possess 

no constitutional right to vote or run for office, see Foley, 435 U.S. at 296, nothing prevents 

States or local governments from granting such rights to their alien residents as a matter of grace. 

And, indeed, some have done just that. In Chicago, for example, non-citizen parents are entitled 

to vote in school board elections. See Ill. Rev. Stat. Ch. 122, 34-1-1, 34-2-1 (1989). The same 

was true in New York City until school boards were disbanded in that jurisdiction. See N.Y. 

Educ. L. § 2590-c(4) (McKinney Supp. 1978–1979); see also Ambach v. Norwick, 441 U.S. 68, 

81 n.15 (1979). In Maryland, six different municipalities have enfranchised non-citizen 

residents.9

 And, as discussed in Part I.B, supra, non-citizens in numerous other jurisdictions 

have historically been permitted to vote and to participate in the political process. 

If the Government truly wanted to block those who cannot participate in self-government 

from spending money in relation to elections, it could easily have tied the prohibitions of § 441e 

to the right to vote. But it did not, and the distinction is not simply theoretical. As a result, noncitizens in Chicago, for example, or Takoma Park, Maryland, can lawfully vote in local elections 

but are prohibited by federal law from donating to, or even spending money to advocate for, their 

chosen candidate. No system that permits such a bizarre result could be defended as “narrowly 

tailored” or even “closely drawn.” See League of Women Voters, 468 U.S. at 396. 

 9 See Barnesville, Md., Town Charter § 74-3; Village of Martin’s Addition, Md., Town Charter art. III, 

§ 30; Somerset, Md., Town Charter art. V, § 83-21; Chevy Chase, Md., Town Charter art. III, § 301; Garrett Park, 

Town Charter art. III, § 78-20; Takoma Park, Md., Town Charter art. VI, § 601. 

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In sum, the patchwork scheme that emerges from § 441e fatally undermines the notion 

that Congress in enacting the law was narrowly tailoring, or closely drawing, a prohibition that 

would prevent those who cannot vote from indirectly “interfering” in the political process. 

B. Plaintiffs’ Nationalities and the Threat of “Foreign Influence” Provides No 

Justification for Gagging Them.

Another distinguishing feature of foreign nationals is, of course, their relationship to 

foreign nations. The Commission seizes upon that relationship in suggesting that § 441e serves 

to prevent “foreign influence” on domestic politics. MTD 23-27. 

The precise meaning of the suggestion is not entirely clear. If the Commission means to 

argue that an alien’s financial support for a candidate is itself illegitimate “foreign influence,” 

that argument fails for the reasons described above. Whether or not such support is “foreign,” 

and whether or not it has “influence,” it is not illegitimate; rather, it is a form of core political 

expression that the First Amendment protects for all residents of the United States. 

If the specter of “foreign influence” adds anything new to the Commission’s argument, 

the claim must be that foreign nationals can be barred from protected political advocacy because 

either (1) they lack allegiance to the United States and therefore are likely to support candidates 

who will support the interests of a foreign nation, or (2) their connection to foreign powers 

makes it likely that they will be used as agents of such, in circumvention of the statute. The 

Commission appears to alternate between these distinct theories. See MTD 23 (referring to 

aliens as “persons of non-American allegiance” and also citing efforts of “the Chinese 

government” to “buy the loyalty of American officials”). 

Either way, the argument fails. The suspected “allegiances” of an entire class of persons 

cannot sustain the law, because such speaker-based and viewpoint-based regulation is anathema 

to the First Amendment. At most, the threat of corruptive foreign influence can justify the extant 

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disclosure rules and contribution caps that apply to all individuals; it cannot justify a complete

ban on contributions (much less expenditures), any more than the ability of any other “special 

interest” to curry favor with candidates can. Nor can an anti-circumvention rationale suffice, in 

light of the slim evidence of circumvention and the narrower means available to stop it. 

1. Foreign Allegiance: The First Amendment does not countenance 

criminalization of speech based on its source. 

The Commission implies that a ban on political spending by resident foreign nationals is 

permissible because, otherwise, individuals of “non-American allegiance” would be able to 

“sway” elections. MTD 22-23; see also 120 Cong. Rec. 8783 (Mar. 28, 1974) (statement of Sen. 

Bentsen) (“Their loyalties lie elsewhere; they lie with their own countries and their own 

governments.”). This is nothing more than an argument that certain individuals should be 

prohibited from speaking because their views may be harmful or dangerous. 

The First Amendment does not lightly tolerate speaker-based restrictions, particularly 

those that rely on generalizations about the likely views or motivations of a class of speakers: 

Premised on mistrust of governmental power, the First Amendment stands against 

attempts to disfavor certain subjects or viewpoints. Prohibited, too, are 

restrictions distinguishing among different speakers, allowing speech by some but 

not others. As instruments to censor, these categories are interrelated: Speech 

restrictions based on the identity of the speaker are all too often simply a means to 

control content. 

Citizens United, 130 S. Ct. at 898-99 (citations omitted). Thus, the Court refused to accept the 

submission that corporations, because their “interests may conflict in fundamental respects with 

the interests of eligible voters,” can be banned from spending money on election campaigns. Id.

at 930 (Stevens, J., concurring in part and dissenting in part). Rather, the Court reaffirmed that it 

is not for Congress to determine whose views are sufficiently well-intentioned to merit 

expression. Id. at 904-07 (majority opinion). “In the realm of protected speech, the legislature is 

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constitutionally disqualified from dictating the subjects about which persons may speak and the 

speakers who may address a public issue.” Bellotti, 435 U.S. at 784-85. 

 Here, the Commission affirmatively argues that the speaker-based bans imposed by 

§ 441e are justified by the need to shelter voters from foreign viewpoints, i.e., as “a means to 

control content.” Citizens United, 130 S. Ct. at 899. That is plainly not a legitimate government 

interest. Concerns about the dangerous content of speech can only justify restrictions if the 

speech “is directed to inciting or producing imminent lawless action and is likely to incite or 

produce such action.” Brandenburg v. Ohio, 395 U.S. 444, 447 (1969) (per curiam). Hence, the 

First Amendment protects the right of a resident of the United States to advocate for the interests 

of a foreign government—or even for the overthrow of the U.S. Government—unless the 

Government can show a likelihood of “imminent lawless action.” See Communist Party of Ind. 

v. Whitcomb, 414 U.S. 441, 448, 450 (1974). 

A fortiori, the Government must make at least as compelling a showing when attempting 

to suppress speech based on the supposition that the speaker may support or advocate views that 

would serve the interests of a foreign nation—which is in substance the Commission’s defense of 

§ 441e. In other words: If, absent a genuine threat of “imminent lawless action,” Brandenburg, 

395 U.S. at 447, the Government cannot ban direct expressions of support for pro-Canada 

policies, then it surely cannot ban Plaintiffs from supporting any candidate based on the mere 

possibility that they might support a candidate whom they want, in turn, to support pro-Canada 

policies. Nor could any fear of harmful foreign viewpoints justify a ban on expenditures through 

political committees, such as the Club for Growth, whose political agendas are independently 

defined by the American citizens who create and operate them. Such a law neither serves a 

compelling interest nor is closely drawn to advance one. 

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Setting aside the insinuation that those with “foreign” loyalties can be gagged because 

Congress perceives their views to be peculiarly dangerous, all that is left of the Commission’s 

“foreign influence” argument is the vanilla suggestion that political spending will result in 

“influence-buying” by resident aliens. MTD 23. Yet this risk of undue influence is no different 

than the problem posed by spending by labor unionists, or large corporations, or pro-life activists 

(all of whom, incidentally, advocate positions that others believe to be dangerous). Namely, “the 

danger of actual quid pro quo arrangements” and “the appearance of corruption stemming from 

public awareness” thereof. Buckley, 424 U.S. at 27. 

Yet the Court has made clear that such concerns over corruption and its appearance can 

be adequately 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. Neither complete bans on contributions nor any

restrictions on expenditures can be justified by those concerns. See Randall, 548 U.S. at 261 

(invalidating low contributions limits because small amounts are “less likely to prove a 

corruptive force than the far larger contributions at issue in the other campaign finance cases”); 

Buckley, 424 U.S. at 45 (“We find that the governmental interest in preventing corruption and the 

appearance of corruption is inadequate to justify [the] ceiling on independent expenditures.”). 

If § 441e is invalidated, political spending by aliens would be subject to the same ceilings 

and disclosure rules applicable to other individuals. See 2 U.S.C. §§ 431(11), 434, 441a.10 

Settled precedent holds that these measures are sufficient to address fears of “influence-buying,” 

and indeed, Congress itself has determined that contributions below those ceilings are too 

minimal to effect any corruption or create any appearance thereof. The Commission cannot 

 10 Congress could also require disclosure of contributing aliens’ nationalities, because disclosure rules can 

“be justified based on a governmental interest in ‘provid[ing] the electorate with information’ about the sources of 

election-related spending.” Citizens United, 130 S. Ct. at 914 (quoting Buckley, 424 U.S. at 66). 

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identify a basis for reaching a different conclusion here. There is no reason to think that U.S. 

politicians are more tempted by foreign contributors than domestic, more willing to sell out to 

the Canadian dollar than the American. 

2. Anti-Circumvention: The Alien Gag Law is not tailored to prevent a 

demonstrated danger of donations by foreign sovereigns. 

At times, the Commission appears to argue that the Alien Gag Law is necessary in order 

to prevent foreign governments from utilizing their nationals, temporarily resident in the United 

States, as pawns in some kind of plot to take control of the federal or state governments. MTD 

23 (referring to contributions by “foreign governmental agents”). The Government cannot show, 

however, (i) a real record of any such plots; or (relatedly); (ii) that other measures already in 

place—including a direct prohibition on funneling contributions through an agent—do not 

suffice to address the threat of circumvention by foreign powers; or (iii) that, if the problem 

exists and is not deterred by anti-funneling rules, an additional ban on spending by the conduit 

would add any value; or (iv) that there are no possible narrower means of pursuing the same 

objective. Yet heightened scrutiny demands that the Government show all of the above. 

McConnell is again instructive. There, the Government proffered a similar anticircumvention rationale in defense of the ban on contributions by minors. 540 U.S. at 232 

(asserting that the provision prevented “donations by parents through their minor children to 

circumvent contribution limits applicable to the parents”). The Court, applying heightened 

scrutiny, was not satisfied. The Government had only “scant evidence of this form of evasion,” 

perhaps due to “sufficient deterrence” from the law prohibiting individuals from making 

contributions in others’ names. Id. In addition, the Government could not show that less 

burdensome measures—e.g., “imposing a lower cap on contributions by minors”—would not 

suffice to address the problem. Id.

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Here, the Commission offers but a single example suggestive of any attempt by a foreign 

sovereign to circumvent the (legitimate) ban on political spending from overseas. In 1998, a 

Senate Committee speculated that the Chinese government had funneled funds to Chinese 

nationals in the United States in order to “develop” China-friendly candidates. MTD 26. That 

unique episode, however, largely involved U.S. citizens and permanent residents (who are not 

even covered by the Alien Gag Law) and was redressed using different statutory provisions (not 

the Alien Gag Law). It thus makes a particularly unconvincing justification for a comprehensive, 

across-the-board ban on all contributions and all expenditures by all temporary residents of all

nationalities. As explained below, heightened scrutiny precludes the Commission from using 

this single example of a problem to defend a sweeping prophylactic of dubious value. 

First, this lone example does not show the type of pervasive, repeated pattern that courts 

demand before accepting an anti-circumvention approach as sweeping as § 441e. In McConnell, 

the Government had offered “some examples” of parents circumventing contribution limits by 

donating through their children, but the Court said that was not enough. 540 U.S. at 232 & n.3. 

“Unusual cases fall far short of a showing that there is a ‘need . . . of the highest order’” for a 

broad, open-ended prohibition. Bartnicki v. Vopper, 532 U.S. 514, 531-32 (2001) (quoting 

Smith, 443 U.S. at 103).

Second, the maneuvering alleged by the Committee Report is already illegal, both for the 

true contributor (the foreign sovereign) and the straw contributor (the resident alien). Under 2 

U.S.C. § 441f, it is illegal to “make a contribution in the name of another person or knowingly 

permit [one’s] name to be used to effect such a contribution.” That includes efforts to funnel 

funds through another. 11 C.F.R. § 110.4(b)(2). The Commission does not explain why this rule 

is inadequate. To the contrary, the episode it highlights suggests that current law (beyond 

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§ 441e) does effectively address circumvention: Chinese nationals caught up in the cited scandal 

were criminally prosecuted, and had their donations returned, precisely because they had violated 

§ 441f and related disclosure laws. See, e.g., United States v. Hsia, 176 F.3d 517 (D.C. Cir. 

1999); United States v. Kanchanalak, 192 F.3d 1037 (D.C. Cir. 1999); Bruce D. Brown, Alien 

Donors: The Participation of Non-Citizens in the U.S. Campaign Finance System, 15 Yale L. & 

Pol’y Rev. 503, 505 (1997) (noting that “millions of dollars” were returned). Thus, § 441e had 

no role in either preventing or remedying the sole example the Government cites to justify it. 

The Commission might contend that the prophylactic of § 441e is needed because the 

direct anti-funneling prohibition of § 441f is insufficient. But “[t]he normal method of deterring 

unlawful conduct is to impose an appropriate punishment on the person who engages in it. If the 

sanctions that presently attach to a violation . . . do not provide sufficient deterrence, perhaps 

those sanctions should be made more severe. But it would be quite remarkable to hold that 

speech by a law-abiding possessor of information can be suppressed in order to deter conduct by 

a non-law-abiding third party.” Bartnicki, 532 U.S. at 529-30. At the very least, before resorting 

to a sweeping prophylactic like § 441e, the Government must demonstrate that direct 

prohibitions have not or will not work. As explained, it has not done so here. 

Third, even if funneling by foreign governments were a problem that could not be solved 

by § 441f, it is far from clear that § 441e would provide any marginal value. Why would 

someone who disregarded the threat of punishment under § 441f be deterred by § 441e? 

Moreover, § 441e would do nothing to prevent permanent residents or citizens from acting as 

conduits, and “a U.S. citizen is just as capable as a non-citizen of fronting for overseas 

contributors.” Brown, supra, at 507. Indeed, the major players in the Chinese episode that the 

Commission identifies were U.S. citizens and permanent residents. See id.; Roberto Suro, 

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Clinton Fund-Raiser to Plead Guilty, Wash. Post, May 22, 1999, at A2 (describing “alleged 

scheme to enlist citizens and legal [permanent] residents as ‘straw donors’ who made 

contributions to the DNC and were then reimbursed with funds collected from nonresident 

foreign nationals” (emphasis added)). Thus, the Commission’s only example of circumvention 

took place notwithstanding § 441e, involved conduits who are expressly permitted to contribute 

under § 441e, and was exposed and punished using a different law. Yet the Commission 

somehow invokes it as the rationale for § 441e.

Finally, even if § 441e would succeed where § 441f fails, the Government still cannot 

show that other “more tailored approaches,” McConnell, 540 U.S. at 232, would not suffice. If 

the Government were truly concerned about meddling by America’s enemies, it could target the 

nationals of specific enemy countries with histories of such meddling, just as it targets specific 

troublesome countries in its export-control laws, 50 U.S.C. App. § 2404(b), and other sanctions 

regimes, 22 U.S.C. § 2370(f). But it “may not suppress lawful speech as the means to suppress 

unlawful speech.” Free Speech Coalition, 535 U.S. at 255. 

In sum, the Commission cites a single episode in which contributions may have been 

illegally funneled from a single country through U.S. citizens and permanent residents, and 

which was redressed through § 441f, in order to support § 441e, which expressly allows political 

spending by permanent residents and instead imposes a blanket ban on all contributions and

expenditures by all non-permanent residents from all countries. That is not even a rational 

policy response to the purported problem, let alone the sort of carefully crafted measure 

demanded under heightened (or strict) scrutiny. 

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IV. THE GOVERNMENT’S ATTEMPTS TO EVADE HEIGHTENED SCRUTINY 

ARE IRRECONCILABLE WITH DECADES OF CONTROLLING PRECEDENT. 

In its motion to dismiss, the Commission does not engage at all with the doctrinal 

framework analyzed above. Its brief hardly mentions the First Amendment, and makes no real 

effort to demonstrate that § 441e satisfies any form of heightened scrutiny. Instead, the 

Commission attempts to short-circuit the analysis by insisting that federal “plenary power” over 

immigration, buttressed by “the government’s broad authority to legislate over matters of foreign 

affairs and national security” (MTD 13-14), allows the Government to restrict fundamental First 

Amendment rights upon a bare showing that the restriction is “rational.” MTD 13-17. That is an 

incredible claim. It is also wrong. The precedent cited by the Commission is not on-point, and 

direct Supreme Court authority refutes its position. The Commission’s other tactic is to engage 

in transparent fearmongering (MTD 22-27), but the horribles that it parades simply do not follow 

from Plaintiffs’ positions and would not justify stripping Plaintiffs of their constitutional rights in 

any event. In truth, it is the Commission’s position that would lead to indefensible results. 

A. The Government’s “Plenary Power” Cannot Justify The Prohibitions of the 

Alien Gag Law.

The Commission’s primary claim is that the Alien Gag Law should be subjected to only 

rational basis scrutiny—the most lax standard known to constitutional law—because it relates to 

immigration, an area over which the Government exercises so-called “plenary power.” MTD 22-

23. That is not the law: The Bill of Rights is not superseded whenever the Government 

regulates aliens. The contrary claim is especially weak here, given that § 441e is not even a 

genuine immigration law, but rather a campaign-finance law that imposes criminal sanctions on 

aliens, entirely outside of the immigration system. If laws enjoy rational basis review simply 

because they regulate the activity of aliens, then aliens have no constitutional rights. 

Case 1:10-cv-01766-RMU Document 20 Filed 01/18/11 Page 47 of 62
 36

1. Congress’s “plenary power” over immigration does not override the 

First Amendment. 

Granted, Congress has “plenary authority” over immigration. INS v. Chadha, 462 U.S. 

919, 940-41 (1983). But this phrase does not mean what the Commission thinks it means. 

In most domestic areas of legislation, the federal Government possesses only the powers 

enumerated in the Constitution, while the States possess general “police power.” United States 

v. Morrison, 529 U.S. 598, 618 & n.8 (2000). There are exceptions, however—areas such as 

immigration where a need for uniformity or lack of an alternative sovereign led the Framers to 

provide the federal Government with exclusive authority. See United States v. Curtiss-Wright 

Export Corp., 299 U.S. 304, 316-17 (1936); United States v. Comstock, 130 S. Ct. 1949, 1978 

n.10 (2010) (Thomas, J., dissenting) (“The Constitution grants Congress plenary authority over 

certain jurisdictions where no other sovereign exists.”). Moreover, immigration and foreign 

affairs sometimes touch on questions not susceptible to judicially manageable standards. See, 

e.g., Chadha, 462 U.S. at 940-41. Courts often use the term “plenary authority” to describe the 

distinctive role of the federal Government in these exclusive domains. See, e.g., id.; Fong Yue 

Ting, 149 U.S. at 712. 

“Plenary power” does not allow Congress to disregard the Bill of Rights, however. 

“Congress has plenary authority in all areas in which it has substantive legislative jurisdiction,” 

but only “so long as the exercise of that authority does not offend some other constitutional 

restriction.” Buckley, 424 U.S. at 132 (citation omitted). The Commission’s contrary position is 

demonstrably incorrect, both from the implications that would flow from it and from the cases 

that reject it. And its own cited cases do not hold otherwise. 

On the Commission’s theory, the Government could go far beyond § 441e and flatly ban 

non-citizens from discussing any political matters, as a rational means of preventing “foreign 

Case 1:10-cv-01766-RMU Document 20 Filed 01/18/11 Page 48 of 62
 37

influence” in the domestic political process. Congress could even prohibit resident aliens from 

speaking to family members in their native countries, because that would be a “rational” way to 

prevent overseas actors from directing domestic speech. For that matter, the Government could 

prohibit resident aliens from practicing Islam, citing the attacks of September 11, 2001, as 

supporting this “rational” ban. Or, a statute could direct that resident aliens’ homes be subject to 

monthly suspicionless searches as a “rational” tool to promote national security. In each case, 

the Bill of Rights would offer no refuge. This cannot be the law; and it is not the law. 

The law, as explained in Part I.C, supra, is that resident aliens “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, 149 U.S. at 724. In his concurring opinion in 

Bridges, Justice Murphy emphatically rejected the Government’s claim that “the ‘plenary’ power 

of Congress to deport resident aliens is unaffected by the guarantee of substantive freedoms 

contained in the Bill of Rights.” 326 U.S. at 160. He wrote that “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,” and as such, “it follows that Congress may not ignore them in the 

exercise of its ‘plenary’ power.” Id. at 161. The full Court later adopted Justice Murphy’s 

concurrence. Kwong Hai Chew, 344 U.S. at 596 n.5; Verdugo-Urquidez, 494 U.S. at 271. 

Likewise, in Chadha, the Court quickly dispatched the argument that “plenary authority” 

precluded constitutional review of the deportation at issue: “The plenary authority of Congress 

over aliens . . . is not open to question, but what is challenged here is whether Congress has 

chosen a constitutionally permissible means of implementing that power.” 462 U.S. at 940-41. 

The Commission’s “plenary power” argument is thus an attempt to relitigate a fight that 

was settled decades ago and has not been seriously questioned by any court since. As the Ninth 

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 38

Circuit held in American-Arab Anti-Discrimination Committee, there is “no merit in the 

Government’s argument that the broad authority of the political branches over immigration 

matters justifies limited First Amendment protection for aliens.” 70 F.3d at 1065. Indeed, this 

Court has twice ruled that resident aliens are “entitled to the same First Amendment protections 

as United States citizens,” Rafeedie, 795 F. Supp. at 22, and that laws infringing upon those 

protections are “judged by the same standards applicable to a citizen of the United States,” 

Brunnenkant, 360 F. Supp. at 1330 (emphasis added). 

Not one of the cases cited by the Commission stands for the contrary proposition, that the 

First Amendment is superseded by the federal power over immigration: 

Two of the cited cases did not involve claims of individual constitutional rights at all. 

See Curtiss-Wright Export Corp., 299 U.S. 304 (articulating foreign-affairs powers of the 

President vis-à-vis Congress); Schneider v. Kissinger, 412 F.3d 190 (D.C. Cir. 2005) (applying 

political-question doctrine to dismiss tort claims against former Secretary of State). These cases 

simply do not speak to the relationship between “plenary power” and constitutional rights. 

Eight of the cited cases do involve claims of constitutional right—but not under the First 

Amendment. Rather, they address claims by aliens who were not engaged in any constitutionally 

protected activity, but rather invoked principles of equal protection in seeking affirmative 

government support (employment or other benefits) on the same terms as U.S. citizens. See 

Plyler v. Doe, 457 U.S. 202 (1982) (free public education); Cabell v. Chavez-Salido, 454 U.S. 

432 (1981) (employment as probation officers); Mathews v. Diaz, 426 U.S. 67 (1982) (federal 

medical insurance); Ambach, 441 U.S. 68 (employment as public school teachers); Foley, 435 

U.S. 291 (employment as police officers); Hampton v. Mow Sun Wong, 426 U.S. 88 (1976) 

(federal civil-service employment); Sugarman v. Dougall, 413 U.S. 634 (1973) (state civilCase 1:10-cv-01766-RMU Document 20 Filed 01/18/11 Page 50 of 62
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service employment); Moving Phones P’ship v. FCC, 998 F.2d 1051 (D.C. Cir. 1993) (broadcast 

licenses). The aliens won some of these cases (Plyler, Hampton) and lost others, but in all of 

them the question was how to evaluate alienage classifications under the Equal Protection Clause 

(or its federal equivalent, see Bolling v. Sharpe, 347 U.S. 497 (1954)). They say nothing about 

the application of, or standard of scrutiny under, the First Amendment. 

Moreover, to the extent these cases are even tangentially relevant, they support Plaintiffs’ 

position. The common principle underlying these cases is that the courts generally assess 

alienage classifications under heightened scrutiny, but apply relaxed scrutiny to classifications 

that exclude aliens from positions involving the exercise of governmental authority. See Foley, 

435 U.S. at 297 (“The essence of our holdings to date is that although we extend to aliens the 

right to education and public welfare, . . . the right to govern is reserved to citizens.”); see also

Cabell, 454 U.S. at 439. That is, while aliens may constitutionally be excluded from 

employment as police officers or civil servants, nothing in these cases suggests that they could be 

imprisoned for protesting such policies or objecting in a newspaper editorial. Here, Plaintiffs do 

not seek “to govern,” Foley, 435 U.S. at 297—only to speak to those who do, see Part III.A, 

supra. Their position is therefore consistent with the equal protection cases, which allow lesser 

scrutiny only for classifications that exclude aliens from participation in government. 

Only four of the cited cases arise under the First Amendment. Of these, one involved a 

non-resident alien outside the United States. It has, of course, always been the law that such 

individuals lack First Amendment rights, which is what the Court held. Kleindienst v. Mandel, 

408 U.S. 753, 762 (1972) (describing Mandel as “unadmitted and nonresident alien”). Another 

of the cases, Haig v. Agee, 453 U.S. 280 (1981), did not involve an alien at all. It concerned the 

revocation of the passport of a citizen—a former CIA agent who was engaged in a campaign to 

Case 1:10-cv-01766-RMU Document 20 Filed 01/18/11 Page 51 of 62
 40

disrupt U.S. intelligence. Id. at 283-86. The Court rejected Agee’s First Amendment claim 

because his disclosures of confidential information, with the express purpose of harming U.S. 

national security, were “clearly not protected by the Constitution.” Id. at 309. 

Only two of the Commission’s cases involve First Amendment claims by resident aliens. 

Yet, in both, the Court actually applied the same First Amendment scrutiny previously applied in 

analogous cases involving citizens, rejecting the aliens’ claims by reference to those decisions. 

In Harisiades, the Court held that the First Amendment does not embrace the “the 

practice or incitement of violence.” 342 U.S. at 592. As authority, the Court cited Dennis v. 

United States, 341 U.S. 494 (1951), which just a year earlier had upheld over constitutional 

challenge the convictions of U.S. citizens for joining the Communist Party. 342 U.S. at 592 

nn.18-19 (citing Dennis and noting that the applicable test “has been stated too recently to make 

further discussion at this time profitable”). Thus, “read properly, Harisiades establishes that 

deportation grounds are to be judged by the same standard applied to other burdens on First 

Amendment rights.” T. Alexander Aleinikoff, Federal Regulation of Aliens and the 

Constitution, 83 Am. J. Int’l L. 862, 869 (1989). Certainly it cannot be read to establish the 

opposite proposition, which would run squarely into the plain and indisputable authority 

described by Plaintiffs above. A few years after Harisiades, in Galvan v. Press, 347 U.S. 522, 

529-30 (1954), the Court relied on its earlier decision to reach a similar result. Even the 

dissenters in that case reluctantly acknowledged that, under the precedents, the statute did “not 

violate the First Amendment’s clear ban against abridgment of political speech and assembly.” 

347 U.S. at 533 (Black, J., dissenting). Of course, speech protections for Communists have 

expanded since 1954, but the essential point is that these cases were decided as a matter of 

ordinary First Amendment law, not special “alien” standards. 

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2. In any event, the Alien Gag Law does not regulate immigration. 

Even if the Government could override the Bill of Rights in the course of exercising its 

“plenary” authority over immigration, that would at most allow it some additional leeway when 

it executes the immigration laws. But the Alien Gag Law is not an immigration law. It does not 

punish non-compliant aliens with removal; it sends them to prison. And outside the deportation 

context, the nexus to the federal Immigration Power is highly attenuated. Whatever the scope of 

the federal Government’s power over immigration, it does not embrace laws like § 441e. 

In arguing otherwise, the Commission is taking a position even broader than the one 

rejected over fifty years ago in Bridges. There, the Government sought to deport the alien, and 

Justice Murphy assumed that everyone agreed that the Government was “precluded from 

enjoining or imprisoning an alien for exercising his freedom of speech.” 326 U.S. at 162 

(emphases added). Yet it is this greater power that the Commission now asserts. 

This is no small step since, even if federal plenary power did trump constitutional rights 

in the unique deportation setting (which it does not), one cannot maintain that plenary power 

trumps the First Amendment here without also maintaining that the Government can flout any 

constitutional protection with any domestic law that applies to aliens. A law banning other forms 

of political speech by resident aliens, a law banning resident aliens from practicing a particular 

religion, a law requiring suspicionless and generalized searches of resident aliens’ homes—on 

the Commission’s view, all would be reviewed only for a rational basis because any regulation of 

foreign nationals is an exercise of congressional “plenary power” over immigration. 

B. The Commission’s Parade of Horribles Is Unfounded and Anyway No 

Reason To Abandon the First Amendment. 

 Perhaps because the law is so clear that Plaintiffs’ claims are subject to ordinary First 

Amendment review and not overcome by ipse dixit assertions of federal power, the Commission 

Case 1:10-cv-01766-RMU Document 20 Filed 01/18/11 Page 53 of 62
 42

also employs a more rhetorical strategy. Repeatedly, its brief argues from the harmful 

consequences that would supposedly flow from a ruling in Plaintiffs’ favor. However, many of 

these consequences are derived from legal positions wrongly attributed to Plaintiffs, and the rest 

are extremely unlikely as a factual matter. In any event, the suggestion that courts should blindly 

defer to vague invocations of foreign dangers is flatly inconsistent with the rule of law. “Liberty 

and security can be reconciled; and in our system they are reconciled within the framework of 

the law.” Boumediene v. Bush, 553 U.S. 723, 798 (2008). 

 1. The Commission suggests that, under Plaintiffs’ view, even “a foreign 

intelligence agent living in Washington, D.C., and working in a foreign embassy” would have 

the right to “finance attack ads” against candidates. MTD 23. Not so. To qualify for First 

Amendment protection, an alien must be “part of a national community or . . . have otherwise 

developed sufficient connection with this country to be considered part of that community.” 

Verdugo-Urquidez, 494 U.S. at 265. Plainly, a foreign diplomat or other agent, who lives in the 

United States only as a means of representing his own foreign community, does not meet the test. 

Tellingly, such individuals are not even counted as part of the U.S. Census—unlike Plaintiffs—

because they reside on “embassy grounds (which is considered ‘foreign soil,’ and thus not within 

any state).” Fed. for Am. Imm. Reform v. Klutznick, 486 F. Supp. 564, 567 (D.D.C. 1980).11

 2. The Commission also sounds the alarm because some States apparently allow 

unlimited political contributions. “While such states have made a policy decision to permit large 

contributions by United States citizens,” the Commission warns, “that in no way implies that 

they would reach the same conclusion as to foreign nationals.” MTD 24. The implication is that 

Plaintiffs’ argument would somehow prevent those States from imposing caps on contributions 

 11 This is not to say that foreign diplomats have no protections. The Due Process Clause provides basic 

protection for anyone within U.S. “territorial jurisdiction.” Yick Wo v. Hopkins, 118 U.S. 356, 369 (1886). 

Case 1:10-cv-01766-RMU Document 20 Filed 01/18/11 Page 54 of 62
 43

by aliens. But reasonable contribution caps are entirely permissible, Buckley, 424 U.S. at 26-27, 

and if Virginia or Oregon decides to impose them, that is not a problem. Nothing in Plaintiffs’ 

argument stands in their way. Saving “reckless” States from their own campaign-finance 

recalcitrance hardly constitutes a compelling government interest. Cf. Tashjian v. Republican 

Party of Conn., 479 U.S. 208, 217 (1986) (recognizing that Constitution mandates “state control 

over the election process for state offices”). 

 3. The Commission speculates that “[a] concerted financial effort by even a portion 

of [the] alien population could generate enough money to skew many congressional, state, or 

local elections.” MTD 25. But, apart from the fact that such rank speculation does not satisfy 

any type of heightened scrutiny, it strains credulity to suggest that individuals who come from a 

multitude of countries to work in thousands of jobs and hold views that run the ideological gamut 

might form a homogeneous or coordinated bloc. Israelis and Arabs living in the United States 

are not likely to find a consensus candidate to support. Nor are nationals of the same country 

likely to share a broad political agenda, as the American experience itself amply illustrates. 

Even assuming such an alien “flash mob” were plausible, this legitimate First Amendment 

activity by a segment of society would be no different than concerted attempts of, for example, 

public-service employees, school-teachers, or seniors, to join together to “skew” elections. To 

the extent these constituencies unite into “factions,” that has long been understood to be an 

inevitable feature of democracy. See The Federalist No. 10 (“Liberty is to faction what air is to 

fire . . . [b]ut it could not be less folly to abolish liberty, which is essential to political life, 

because it nourishes faction, than it would be to wish the annihilation of air, which is essential to 

animal life, because it imparts to fire its destructive agency.”). 

Case 1:10-cv-01766-RMU Document 20 Filed 01/18/11 Page 55 of 62
 44

 4. Next, the Commission assumes that, if Plaintiffs are correct, then foreign 

corporations would be entitled to the same constitutional protections. MTD 25-26. That does 

not follow. No corporation is permitted to contribute directly to candidates, 2 U.S.C. § 441b(a), 

a rule that is necessary to prevent individuals from artificially inflating contribution caps. So all 

that is at stake is independent expenditures. And a victory for Plaintiffs, who reside 

domestically, would not require that foreign corporations have a right to make political 

expenditures. The concept of “residency” does not translate in any obvious way to the corporate 

context, and therefore it is not clear—whatever the outcome of this case—how to treat foreign 

corporations that do business in the United States or domestic corporations that are owned in 

whole or in part by non-resident foreign nationals. These are complex questions with which 

Congress has been struggling, see DISCLOSE Act, 111th Cong., 2d Sess., S.3295 (2010), and 

which will undoubtedly come before the courts in the future, but Plaintiffs’ claims have no 

bearing on them: Even if 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. These are fundamentally different 

and independent questions. 

5. Finally, the Commission ominously warns that the United States Government has 

granted “thousands of student and work visas to citizens of Iran—a nation that has been formally 

designated a ‘state sponsor of terrorism.’” MTD 27. It is hard to take seriously the suggestion 

that the Government allows possible terrorists to enter the country willy-nilly and live here 

without monitoring, but that the real danger is that, when they coordinate their energy to attack 

the Nation, it will be by donating a few hundred dollars each to a local congressional candidate. 

Case 1:10-cv-01766-RMU Document 20 Filed 01/18/11 Page 56 of 62
 45

More generally, the Commission’s fearmongering is legally irrelevant. Its brief 

repeatedly invokes enemies of the United States—Nazis, Iranian terrorists, and a coordinated 

army of Chinese resident aliens, to name a few—all of whom apparently stand ready to use 

contributions of $2,400 per candidate and independent expenditures to trick voters into electing 

representatives who will give material assistance to these enemies. See, e.g., MTD 26, 27. Such 

a suggestion is demeaning to the American electorate, which the Commission appears to believe 

would vote for Khalid Shaikh Mohammed if presented with sufficiently expensive advertising. 

But in any event, the courts have developed tests to determine whether individual rights must 

give way to other important interests, like public safety or national security. See Part III.B.1, 

supra. The Commission, however, cannot plausibly satisfy those standards here; it does not even 

try to. In our constitutional system, the Government does not get a free pass to avoid settled 

legal standards and wipe out fundamental rights by incanting the phrase “national security.” 

CONCLUSION

For these reasons, Plaintiffs respectfully request that this Court deny Defendant’s motion 

to dismiss, and enter summary judgment in favor of Plaintiffs. 

Dated: January 18, 2010 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 

Case 1:10-cv-01766-RMU Document 20 Filed 01/18/11 Page 57 of 62
 

IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

Benjamin Bluman, et al.,

 Plaintiffs, 

v. 

Federal Election Commission, 

 Defendant. 

Civ. No. 10-1766 

(Three Judge Court) 

STATEMENT OF MATERIAL FACTS IN SUPPORT OF 

PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT 

 Pursuant to Federal Rule of Civil Procedure 56 and Local Rule 7(h), Plaintiffs submit the 

following statement of material facts as to which they contend there is no genuine disputed issue. 

Material Facts About Plaintiff Bluman

 1. Benjamin Bluman is a citizen of Canada. See Declaration of Benjamin Bluman 

(“Bluman Decl.”) ¶ 1. 

 2. Mr. Bluman attended Harvard Law School, located in Cambridge, Massachusetts, 

between September 2006 and June 2009. During those years, he lawfully resided on a nearly 

continuous basis in the United States, as an “F-1” nonimmigrant. See Bluman Decl. ¶ 2. 

 3. On November 12, 2009, Mr. Bluman applied for admission to the United States as 

a “TN” nonimmigrant. On that same date, he was so admitted. See Bluman Decl. ¶ 3. 

 4. Since his admission on November 12, 2009, Mr. Bluman has lawfully resided in 

the United States, specifically, in New York City. See Bluman Decl. ¶ 4. 

 5. Mr. Bluman pays applicable federal state, and local taxes. See Bluman Decl. ¶ 5. 

Case 1:10-cv-01766-RMU Document 20 Filed 01/18/11 Page 58 of 62
 2

 6. As a “TN” nonimmigrant, Mr. Bluman is authorized to remain in the United 

States until November 11, 2012. See Bluman Decl. ¶ 6. 

 7. Upon expiration of his authorized term in the United States, Mr. Bluman 

anticipates applying for an additional three-year term. See Bluman Decl. ¶ 7. 

 8. Mr. Bluman is employed by a law firm in New York. See Bluman Decl. ¶ 8. 

 9. Mr. Bluman is an active member of the Bar of the State of New York. Upon his 

admission to the Bar, he swore an oath to uphold the United States Constitutions and the 

Constitution of the State of New York. See Bluman Decl. ¶ 9. 

 10. Mr. Bluman holds strong political views. Among other things, he believes that 

gay and lesbian individuals should have full civil rights, including the right to marry; that the 

United States must take robust action to prevent the threats posed by climate change; and that 

“net neutrality” should be mandated for internet service providers. See Bluman Decl. ¶ 10. 

 11. Mr. Bluman wants to express his views on these and related issues by contributing 

money to political candidates who agree with them, and by independently spending money to 

advocate for the election of such candidates. See Bluman Decl. ¶ 11. 

 12. Specifically, Mr. Bluman wants to contribute $100 each to Representative Jay 

Inslee, Democrat of Washington, who has taken a lead role in advocating for net-neutrality; New 

York State Senator Diane Savino, who has eloquently defended the right of gays and lesbians to 

marry; and President Barack Obama, whose views and policies are largely in accord with his 

own. See Bluman Decl. ¶ 12. 

 13. Mr. Bluman also wants to pay for the printing of flyers that support the re-election 

of President Barack Obama, and distribute those flyers near his home, in Central Park. See 

Bluman Decl. ¶ 13. 

Case 1:10-cv-01766-RMU Document 20 Filed 01/18/11 Page 59 of 62
 3

 14. Mr. Bluman anticipates wanting to make similar contributions and expenditures in 

the future, during the time that he remains resident in the United States. See Bluman Decl. ¶ 14. 

 15. Mr. Bluman cannot engage in the above activities because they are illegal under 

current law and would subject him to severe sanctions. However, if the law prohibiting the 

activities were invalidated, he would engage in those activities. See Bluman Decl. ¶ 15. 

Material Facts About Plaintiff Steiman

 16. Asenath Steiman is a dual citizen of Canada and the State of Israel. See

Declaration of Asenath Steiman (“Steiman Decl.”) ¶ 1. 

 17. On June 23, 2009, Dr. Steiman applied for admission to the United States as a 

“J-1” nonimmigrant. On that same date, she was so admitted. See Steiman Decl. ¶ 2. 

 18. Since her admission on June 23, 2009, Dr. Steiman has lawfully resided in the 

United States. See Steiman Decl. ¶ 3. 

 19. Dr. Steiman is lawfully employed as a physician by the Beth Israel Medical 

Center in New York City, where she is fulfilling her medical residency. See Steiman Decl. ¶ 4. 

 20. Dr. Steiman pays applicable federal, state, and local taxes. See Steiman Decl. ¶ 5. 

 21. As a “J-1” nonimmigrant, Dr. Steiman is authorized to remain in the United States 

until June 22, 2012. That term is likely to be extended by up to four years, depending on the 

course of her medical specialization. See Steiman Decl. ¶ 6. 

 22. Dr. Steiman belongs to the American Medial Association. See Steiman Decl. ¶ 7. 

 23. Dr. Steiman holds strong political views. She considers herself a conservative, 

and believes that government should be smaller and taxes lower. As a medical professional, she 

is especially concerned about recent political developments relating to healthcare and fears the 

growing role of the government in the delivery of medical services. See Steiman Decl. ¶ 8. 

Case 1:10-cv-01766-RMU Document 20 Filed 01/18/11 Page 60 of 62
 4

 24. When Dr. Steiman lived in Canada, she paid membership fees to join the 

Conservative Party of Canada and its predecessor. Further, as a college student in Toronto, 

Canada, she served on the executive of the party’s campus association. See Steiman Decl. ¶ 9. 

 25. Dr. Steiman receives regular email updates from the Club for Growth, an 

organization devoted to supporting candidates who promote economic growth and economic 

liberty. See Steiman Decl. ¶10. 

 26. Dr. Steiman wants to express her political views by contributing money to 

political candidates who agree with them and by independently spending money to advocate for 

such candidates. See Steiman Decl. ¶ 11. 

 27. Specifically, Dr. Steiman wants to contribute $100 each to Senator Tom Coburn, 

Republican of Oklahoma, who has taken a lead role in opposing government intrusion into the 

healthcare system; and to her preferred candidate for the Republican nomination to challenge 

President Barack Obama in the next presidential election. See Steiman Decl. ¶ 12. 

 28. Dr. Steiman further wants to donate $100 to the National Republican Senatorial 

Committee, a party-affiliated political committee that helps to elect candidates who share her 

views. See Steiman Decl. ¶ 13. 

 29. Dr. Steiman also wants to donate $100 to the Club for Growth, in order to help 

advocate for the election of fiscally conservative candidates. See Steiman Decl. ¶ 14. 

 30. Dr. Steiman anticipates wanting to make similar contributions and expenditures in 

the future, during the time that she remains resident in the United States. See Steiman Decl. ¶ 15. 

 31. Dr. Steiman cannot engage in the above activities because they are illegal under 

current law and would subject her to severe sanctions. However, if the law prohibiting the 

activities were invalidated, she would engage in those activities. See Steiman Decl. ¶ 16. 

Case 1:10-cv-01766-RMU Document 20 Filed 01/18/11 Page 61 of 62
 5

Dated: January 18, 2010 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 

Case 1:10-cv-01766-RMU Document 20 Filed 01/18/11 Page 62 of 62