Here is the opinion by Judge Kavanaugh in Bluman v. FEC:
We respect the force of plainitffs’ arguments, as ably advanced by plaintiffs’ counsel. Under the relevant Supreme Court precedents, however, we must disagree with Plaintiffs’ submission. The Supreme Court has long held that the government (federal, state, and local) may exclude foreign citizens from activities that are part of democratic self-government in the United states. For example, the Supreme Court has ruled that the government may bar aliens from voting, serving as jurors, working as police or probation officers, or teaching at public schools. Under those precedents, the federal ban at issue here readily passes constitutional muster.
Judge Kavanaugh finds that the standard of scrutiny is tricky, but irrelevant, because the law’s “ban on political contributions and expenditures by foreign naturals” “passes muster even under strict scrutiny.” Kavanaugh lists a number of cases where the government cannot discriminate against foreign nationals, but concludes that there are many cases in which “foreign citizens may be denied certain rights and privileges that U.S. citizens possess” including voting, jury service, police officers, teachers, and holding certain offices.
This sentence may cause a lot of angst on the left (and may be here quite intentionally):
“It is fundamental to the definition of our national political community that foreign citizens do not have a constitutional right to participate in, and thus may be excluded, from activities of democratic self-government. It follows, therefore, that the United States has a compelling interest for purposes of the First Amendment analysis in limiting the participation of foreign citizens in activities of American democratic self-government, and in thereby preventing foreign influence over the U.S. political process.
Kavanaugh notes that the Plaintiffs suggest that the “ban on foreign participation in the campaign process is the process of jingoistic sentiment in the United States and thus should not be accepted by courts.” This argument may prove appealing to some.
Citizens United makes its first appearance on page 12, where Kavanaugh cites Stevens’ dissent about banning foreign nationals from making campaign contributions. Kavanaugh finds that “the majority’s analysis in Citizens United [is] certainly not in conflict with Justice Stevens’s conclusion on this particular aspect about foreign influence. Indeed, in our view, the majority opinion in Citizens United is entirely consistent with a ban on foreign contributions and expenditures.”
With that guiding principle, Kavanaugh finds that political contributions and express-advocacy are part of democratic self-government.
In a footnote, Kavanaugh notes that foreign corporations–the real specter here–are likewise barred from making contributions and expenditures.
At Election Law Blog. Hasen writes:
While I am very happy with the ruling, and expect the Supreme Court will likely affirm if and when this case is appealed, I believe the rationale here is in considerable tension—not recognized at all by the panel here—with Citizens United‘s “more speech is better”/”the identity of the speaker” does not matter view of the First Amendment.
I think Hasen is right. There is barely any mention, whatsoever, of Citizens United. The Court automatically will review this case, so no need to wait for a cert petition. Stay tuned.
Disclosure: My colleague Yaakov Roth was one of the attorneys who brought this case.