In his 2010 State of the Union Address, President Obama accused the Supreme Court’s decision in Citizens United of “open[ing] the floodgates for special interests–including foreign corporations–to spend without limit in our elections.” [transcript]. A video camera caught Justice Alito mouthing the words “Not true,” and the blawgosphere went wild.
The reaction to the Supreme Court’s summary affirmance earlier this month in Bluman v. FEC [pdf], has been somewhat more subdued, though the full Court required only twice as many words as Justice Alito to make the same point: “The judgment is affirmed.”
The three-judge district court decision below, authored by D.C. Circuit Judge Kavanaugh, upheld the statutory bar on campaign contributions by foreign nationals. Although the suit was brought by individuals residing in the United States, Judge Kavanaugh went out of his way to point out that the court’s holding “means, of course, that foreign corporations are likewise barred from making contributions and expenditures prohibited by [the Bipartisan Campaign Reform Act of 2002].” (PDF, page 17 n.4).
Judge Kavanaugh coyly ignored Justice Alito’s tipping of his hand, but he did observe that Justice Stevens, writing for the four dissenters in Citizens United, had stated the uncontroverted belief that Congress possesses the authority to restrict campaign spending by foreign nationals.
For Justices Stevens, Ginsburg, Breyer, and Sotomayor, it was plain–indeed, beyond rational debate–that the government may bar foreign contributions and expenditures. To be sure, the five other Justices did not have occasion to expressly address this issue in Citizens United, but the majority’s analysis in Citizen’s United certainly was not in conflict with Justice Stevens’s conclusion on this particular question of foreign influence. Indeed, in our view, the majority opinion is entirely consistent with a ban on foreign contributions and expenditures. And we find the force of Justice Stevens’s statement to be a telling and accurate indicator of where the Supreme Court’s jurisprudence stands on the question of foreign contributions and expenditures.
One suspects that only heroic self-discipline averted a citation to another “telling and accurate indicator” of the Supreme Court’s view on the matter, as Judge Kavanaugh is known to cite an apt video clip on occasion. See United States v. Papagno, 639 F.3d 1093, 1098 (D.C. Cir. 2011) (“Fans at a basketball game might help the home team win the game (and earn the title ‘sixth man’), but even the fans who wear jerseys and are given the choke sign by the opposing team’s star player do not participate in the game.” (citing http://www.youtube.com/watch?v=UrtVZftjbhk)) (explaining why the Naval Research Laboratory, for purposes of awarding restitution, was not “participating” in the criminal investigation of its employee when it conducted an internal investigation).
- Ed Whelan, Supreme Court: Obama Wrong on Citizens United, National Review Online (Jan. 12, 2012) (“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.”).)
- John H. Cushman, Jr., Supreme Court Retains Ban on Foreign Campaign Donations, N.Y. Times (Jan. 9, 2012)
- Greg Stohr, Foreigners Rejected by U.S. High Court on Campaign Spending Ban, Bloomberg (Jan. 9, 2012)
- David Lat, SCOTUS at the SOTU: Some Historical Perspective, Above The Law (Jan. 24, 2012) (“The Alito v. Obama confrontation took place in 2010. Despite the controversy it generated, it didn’t dampen attendance in 2011: last year, six justices showed up for the SOTU.”)
- Adam Liptak, For Justices, State of the Union Can Be a Trial, N.Y. Times (Jan. 23, 2012) (“On substance, Justice Alito probably had the better of the exchange.”)