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ON Friday the United States Supreme Court will meet to decide whether to hear Bluman v. F.E.C., a First Amendment challenge to a federal law that prohibits noncitizens living in the United States (but who dont have green cards) from making contributions to American political candidates or from spending money on independent speech to influence elections.
The lead plaintiff, Benjamin Bluman, is a Canadian lawyer who lawfully lives in New York City. He is legally prohibited from paying for leaflets he planned to distribute urging the re-election of President Obama.
The case raises fundamental questions about the scope of the First Amendment. Do noncitizens who lawfully reside in this country have a First Amendment right to advocate the defeat or election of American political candidates? And do American voters have a First Amendment right to hear what noncitizens have to say about our politics?
Last August, a panel of three federal judges in Washington answered both these questions with a resounding no. That was a mistake, and the Supreme Court should correct it.
While it may sound surprising that the First Amendment could protect electoral advocacy by noncitizens, including political contributions and expenditures, the argument is grounded in precedent. The Supreme Court has held for over 35 years that the First Amendment protects the right to make political contributions and expenditures. Moreover, courts have long held that noncitizens who lawfully reside within the United States are entitled to the full protection of the First Amendment. The plaintiffs argument in Bluman simply combines these two strands of precedent.
Noncitizens who have permanent residency are allowed to make contributions and political expenditures. Allowing lawful temporary residents to do the same, on the same terms as United States citizens, would also reflect the general rule that the First Amendments protections do not vary based on the identity of the speaker. That belief was at the center of the Supreme Courts ruling in Citizens United v. F.E.C., which held that Congress lacked the power to prohibit corporations from spending money to influence federal elections.
Gotta say, I never thought I would see the day the NYT got an election speech issue right.
