By BEN FREEMAN, Ph.D.
In a deceptively titled op-ed in The Wall Street Journal, Paul Sherman asks, "Do Foreigners Deserve Free Speech Rights?" But, Sherman is not actually discussing free speech--he's advocating for allowing foreign governments, businesses, political parties, and individuals to dump unlimited money into U.S. politics.
Sherman's argument is in relation to a lawsuit filed by two foreign nationals, Benjamin Bluman and Asenath Steiman, against the Federal Election Commission (FEC), which challenges the ban on foreign national contributions. The case was dismissed by a U.S. District Court in August, but the plaintiffs appealed to the Supreme Court, which, on Monday, opted not to review the case.
According to Sherman this was ill-advised, because the Bluman/Steiman case is “well grounded in Supreme Court precedent.”
But, if you objectively review Supreme Court precedent, this claim is contentious at best.
In prior cases, the Court found that foreign citizens may be barred from activities “intimately related to the process of democratic self-government,” and aren’t eligible to perform functions inherent to democratic government, like serving as jurors or police officers, because “the right to govern is reserved to citizens.”
Sherman cleverly avoids these issues by using a bait-and-switch tactic, arguing that this case promotes censorship by silencing the verbal communication of foreigners. The simple fact is that the prohibition on foreign national contributions does not actually restrict speech at all. It in no way restricts non-U.S. citizens from engaging in issue advocacy or speaking out on public policies— it simply does not allow them to do so with money. And, as the district court noted in its decision to dismiss the case, “plaintiffs’ home countries—Israel and Canada—and many other democratic countries impose similar restraints on political spending by foreign citizens.”
These laws are necessary to protect democracies, in the U.S. and abroad, from undue foreign influence and insure that democratic citizens everywhere have a truly sovereign government. This need was evident in the 1930s when Nazi propagandists were working in the U.S. to garner support for Hitler’s Germany, spurring passage of the U.S. Foreign Agents Registration Act.
It’s clear that this is not a partisan or nationalistic issue—losing control of your own government, even a little bit, is an infringement on your sovereignty regardless of your political leanings or the country you call home.
Since its founding, the U.S. has been concerned about undue foreign influence. In his farewell address, George Washington cautioned that, “Against the insidious wiles of foreign influence…the jealousy of a free people ought to be constantly awake. Since history and experience prove that foreign influence is one of the most baneful foes of Republican Government.” And, as the District Court noted in its dismissal of the Bluman case,
The Constitution grants Congress and the President the authority — indeed, the duty — to protect the nation from foreign harm. Attempts to cause such harm take many forms, including, as history shows beyond any doubt, financial interference with American elections. Preventing that interference is thus a compelling governmental interest of the highest order.
It is thus imperative that the Supreme Court continue to defend the fundamental right of American citizens to have a democracy that is for, of, and by them.
Ben Freeman is POGO's National Security Fellow.
Image via Flickr user auntjojo.