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No Citizens United expansion

Foreigners who are living in the U.S. have no constitutional right to spend money to try to influence U.S. elections for any government office, the Supreme Court made clear in a one-sentence order on Monday.  Without elaboration and with no noted dissents, the Court upheld a lower-court decision that Congress had the authority to bar foreign nationals living in this country from putting their private funds into any federal, state, or local election campaign.  The Court thus made clear that its deeply controversial ruling of two years ago, in Citizens United v. Federal Election Commission, did not extend beyond U.S. citizens (including corporations).

The ruling came in the case of Bluman v. FEC (11-275).  The fact that the Court acted without exerting much effort on the issue made it clear that the Court had little doubt about the outcome.  And, it meant that the test it had laid down in Citizens United — that Congress could not vary campaign finance rights on the identity of the spender — could have a significant exception.  Nothing about the summary ruling, though, cast any doubt on the continuing right of corporations and labor unions to spend as much as they want on federal candidates, so long as they do so independently of a candidate or candidate’s organization and are willing — most of the time — to disclose what they have done.

Monday’s decision was the most significant entry on the list of orders released as the Court returned from a holiday recess.   The orders granting two new cases were issued last Friday.

When the Court issued its Citizens United decision in January 2010, it said explicitly that it was not ruling upon restrictions on campaign spending by foreign nationals, wherever they were located.  That led to the test case that the Justices ended on Monday, with the order upholding a decision of a three-judge U.S. District Court rejecting the First Amendment challenge to the ban on foreigners’ contributions or spending — a restriction that was part of a pattern followed by Congress going back to 1935.

Specifically at issue in the new case was a complete ban on contributions and on any independent spending in U.S. elections by foreign nationals, even if they were living lawfully in the country.  In challenging the District Court ruling in a Supreme Court appeal, two individuals contended that the decision was based precisely on the identity of the spender, something that it argued directly contradicted the Citizens United rationale.  The lower court, the two individuals’ appeal argued, departed in every way that it could from Citizens United.

The Obama Administration and the FEC urged the Court to turn aside the appeal quickly, arguing that the Court had repeatedly upheld the power of Congress and state legislatures to pass laws barring non-citizens from interfering in American government and its processes.  The Court took that advice.

In another development on Monday, three of the Justices engaged in a spirited debate over a case the Court chose not to hear, involving a federal appeals court decision striking down the conviction of a California man on charges that he had murdered two homeless men in downtown Los Angeles — part of a series of ten such killings that were attributed to a “Skid Row Stabber.”  While the Court denied review of the Ninth Circuit Court’s decision, the case led Justice Sonia Sotomayor to write an opinion for herself justifying the outcome, and led Justice Antonin Scalia, joined by Justice Samuel A. Alito, Jr., to write a dissenting opinion challenging the lower court conclusion and saying it should have been overturned summarily — that is, without briefing and oral argument.  The dispute was over the Ninth Circuit’s rejection of an alleged jailhouse confession that a jailhouse “snitch” said had been made to him by the convicted man, Bobby Lee Maxwell.  The denied case was Cash v. Maxwell (10-1548).

The Court’s denial order and Justice Sotomayor’s statement regarding the denial are here.   The Scalia dissenting opinion is here.

Justice Scalia’s opinion, after specifically challenging aspects of the Ninth Circuit Court ruling that the Court had left intact, used the concluding part of his dissenting opinion to criticize that lower court for too often overturning state courts in criminal cases.  His critique began with the statement that “it is regrettable that some federal judges like to second-guess state courts (emphasizing the word “like”).”  The Court, he went on, has only one way to ensure that lower courts restrict their oversight of state cases:  it “is to perform the unaccustomed task of reviewing utterly fact-bound decisions that present no disputed issues of law.”

That necessary task, he added, has been performed often by the Court, and the Justices have found a particular need to do so :”with regard to decisions of the Ninth Circuit.”  His opinion then ticked off eight such instances.  Today, he concluded,the Court had “shrunk” from that duty, “letting stand a judgment that once again deprives California courts of that control over the state’s administration of criminal justice which federal law assures.”



Recommended Citation: Lyle Denniston, No Citizens United expansion, SCOTUSblog (Jan. 9, 2012, 11:24 AM),