Today a divided panel of the U.S. Court of Appeals for the Sixth Circuit granted the state of Ohio's application of an emergency stay of a district court injunction barring enforcement of an Ohio law prohibiting foreign nationals from spending money to support or oppose a ballot initiative. The district court concluded that the plaintiffs were likely to succeed in their challenge to the law. In OPAWL—Building AAPI Feminist Leadership v. Yost, a divided panel of the Sixth Circuit disagreed.
Judge Thapar wrote for the court, joined by Judge McKeague. Judge Davis dissented.
Writing for the panel, Judge Thapar rejected the plaintiffs' arguments that the prohibition is overbroad and that it unconstitutionally restricts the First Amendment rights of lawful permanent residents. While lawful permanent residents have First Amendment rights, Judge Thapar explained, the state also has a compelling interest in preventing foreign money from distorting domestic self-government.
the "exclusion of aliens from basic governmental processes is not a deficiency in the democratic system but a necessary consequence of the community's process of selfdefinition." Cabell v. Chavez-Salido, 454 U.S. 432, 439 (1982). States can prevent non-citizens from serving as probation officers, see id., or teaching in public schools, see Ambach v. Norwick, 441 U.S. 68 (1979). Why? Because the "distinction between citizens and aliens, though ordinarily irrelevant to private activity, is fundamental to the definition and government of a State." Id. at 75. "It is because of this special significance of citizenship that governmental entities, when exercising the functions of government, have wider latitude in limiting the participation of noncitizens." Id. So, excluding non-citizens from certain activities can advance a compelling interest when those activities form part of the "the process of democratic selfgovernment." Bluman, 800 F. Supp. 2d at 287.
Campaign contributions and independent expenditures are part of our process of democratic self-government. Under Supreme Court precedent, the activities of self-government "include functions as unrelated to the electoral process as teaching in public schools and serving as police and probation officers." Id. at 288 (citations omitted). "[S]pending money to influence voters and finance campaigns is at least as (and probably far more) closely related to democratic self-government than serving as a probation officer or public schoolteacher." Id. at 288–89. It's thus unsurprising that the dissenters in Citizens United emphasized that the Court has "never cast doubt on laws that place special restrictions on campaign spending by foreign nationals." Citizens United v. Fed. Election Comm'n, 558 U.S. 310, 423 (2010) (Stevens, J., concurring in part and dissenting in part). For this very same reason, courts have upheld large-donor disclosure requirements because, in part, they help "ensure that foreign nationals . . . do not seek to influence United States' elections." Indep. Inst. v. Fed. Election Comm'n, 216 F. Supp. 3d 176, 191 (D.D.C. 2016), aff'd, 580 U.S. 1157 (2017); see also SpeechNow.org v. Fed. Election Comm'n, 599 F.3d 686, 698 (D.C. Cir. 2010). . . .
the Supreme Court's approval of excluding foreigners from the process of self-government applies with full force to Ohio's restrictions on lawful permanent residents' political spending. "The statute does not serve a compelling interest in limiting the participation of nonvoters in the activities of democratic self-government; it serves the compelling interest of limiting the participation of non-Americans in the activities of democratic self-government." Bluman, 800 F. Supp. 2d. at 290 (emphasis in original). By definition, lawful permanent residents are not American citizens. Therefore, we have no trouble concluding that Ohio has a compelling interest in preventing foreign influence in its elections and that Ohio's interest extends to preventing independent expenditures by non-citizens.
The court further concluded that the law was sufficiently tailored to this interest.
Ohio can take steps to assure its people that foreign interests haven't unduly swayed its elections without abundant "proof by documentary record." Id. at 447. Addressing a widespread perception of foreign interference makes "perfect sense." Nixon, 528 U.S. at 390. "Leave the perception of impropriety unanswered, and the cynical assumption that [foreign] donors call the tune could jeopardize the willingness of voters to take part in democratic governance." Id. Thus, contrary to the district court's finding, Ohio met its burden of linking spending by lawful permanent residents to preventing foreign interference in Ohio's elections.
Similarly, to maintain public confidence in fair elections, the Court has permitted states "to respond to potential deficiencies in the electoral process with foresight rather than reactively." Munro, 479 U.S. at 195. For example, the Supreme Court has recognized that because "[e]lections vary from year to year, and place to place," it can be "difficult to make specific findings about the effects of a voting regulation." Burson v. Freeman, 504 U.S. 191, 209 (1992). As a result, requiring precise proof of those effects "would necessitate that a State's political system sustain some level of damage before the legislature could take corrective action." Munro, 479 U.S. at 195. So too with a campaign finance restriction: quantifying the precise effects of non-citizens' political expenditures is all but impossible.
Judge Thapar's opinion concludes:
The state of Ohio passed a law restricting the ability of foreign nationals to contribute to state campaigns and make independent expenditures related to state ballot initiatives. Concerns about foreign interference in American politics aren't new. And Ohioans and their representatives have a compelling interest in regulating such influence. We can't interfere with their judgment unless the First Amendment demands it. And here, it doesn't.
Judge Davis dissented. Her dissent begins:
Ohio's § 121 is unlikely to pass constitutional muster applying either strict or intermediate scrutiny. The state is therefore unlikely to prevail on the merits and a stay of the district court's grant of injunctive relief is not warranted. For this reason, I disagree with my colleagues and respectfully dissent.
To begin, § 121 distinguishes itself from federal restrictions on campaign contributions and expenditures under the parallel Federal Election Campaign Act ("FECA") in one constitutionally important way: it defines "foreign national" more broadly than the term is defined in identical contexts. Unlike FECA, § 121 includes lawful permanent residents ("LPRs") in its definition of foreign national. Compare 52 U.S.C. § 30121(a)(1) with Ohio Rev. Code Ann. § 3517.121(A)(2)(a). In defining foreign nationals this way, the law directly burdens LPRs's First Amendment rights. And beyond that, the law implicitly burdens United States citizens based on certain affiliations with LPRs as well as advocacy organizations with LPR members in ways that create uneven regulation of speech when compared to corporations.
United States citizens and lawful permanent residents have First Amendment rights. See Bridges v. Wixon, 326 U.S. 135, 148 (1945) ("Freedom of speech and press is accorded aliens residing in this country."). And I agree with my colleagues' observation that Ohio's statutory regulation of independent expenditures and campaign contributions constitutes a restriction on speech. See Buckley v. Valeo, 424 U.S. 1, 16-23 (1976). As such, § 121 necessarily receives First Amendment scrutiny. The questions that remain, then, are what type of scrutiny should apply and whether Ohio has met its burden under the appropriate level of scrutiny. The answer to the latter question is where I respectfully part ways with the majority.
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