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.

Most Popular

Politics & Policy

The Origins of Progressive Agony

What has transformed the Democratic party into an anguished progressive movement that incorporates the tactics of the street, embraces maenadism, reverts to Sixties carnival barking, and is radicalized by a new young socialist movement? Even party chairman Tom Perez concedes that there are “no moderate ... Read More
Elections

How Will the Senate Races Break?

How will the Senate races break? We have less public polling to go on than in recent years, so answering that question is harder than ever. But the news is more optimistic for Republicans than it was a month ago.   Waves and Breakers Four years ago, I projected in mid September that if “historical ... Read More
PC Culture

Warren Is a Fraud

Senator Elizabeth Warren (D., Mass.) has been telling a story for years. It’s a deeply romantic story about her parents and their young love, fraught with the familial bigotry of an earlier time. Here’s how she told it this week in a video she released in preparation for her 2020 run: My daddy always said he ... Read More
U.S.

Two Minnesota Republican Candidates Assaulted

Two Republican candidates for state office in Minnesota have been physically assaulted in recent days, leading prominent Republican lawmakers to caution their Democratic colleagues against employing inflammatory rhetoric. Republican state representative Sarah Anderson was punched in the arm last week after ... Read More
Law & the Courts

A Christian Man Receives Justice

A good man’s legal ordeal is at an end. Yesterday, my friends and former colleagues at the Alliance Defending Freedom announced that former Atlanta fire chief Kelvin Cochran had reached a $1.2 million settlement, ending a case he brought after the city fired him for writing -- and distributing to a select few ... Read More