Bench Memos

Supreme Court: Obama Wrong on Citizens United

There has been broad agreement that President Obama didn’t get it right in his State of the Union address two years ago when he criticized the Supreme Court’s Citizens United decision for supposedly “revers[ing] a century of law to open the floodgates for special interests—including foreign corporations—to spend without limit in our elections.” Still, it’s noteworthy that on Monday a unanimous Supreme Court effectively declared Obama’s assertion about foreign corporations “not true.”

Federal law (2 U.S.C. § 441e) bars foreign nationals, other than lawful permanent residents, from making contributions to candidates, from contributing to political parties, and from making campaign expenditures. Last August, in Bluman v. FEC, a three-judge district court ruled that the Constitution allows these prohibitions to apply to foreign citizens who are lawfully in the United States on temporary work visas. On Monday, a unanimous Supreme Court summarily affirmed the district court’s judgment. (See first item in Court’s order list.)

In a footnote to its opinion, the district court noted that its holding “means, of course, that foreign corporations are likewise barred from making contributions and expenditures prohibited by” the same federal law. (The definition of “foreign national” in section 441e includes a “foreign principal,” which term in turn includes foreign corporations.) While it’s true (as Eugene Volokh explains) that the Court has said that its “summary disposition affirms only the judgment of the court below, and no more may be read into [its] action than was essential to sustain that judgment,” it is difficult to imagine any possible basis on which the Court could hold that the prohibitions of section 441e can apply to foreign citizens who are lawfully in the United States on temporary work visas but can’t apply to foreign corporations.

Ed Whelan — Ed Whelan is a leading commentator on nominations to the Supreme Court and the lower courts and on issues of constitutional law.

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