Canadians launch U.S. constitutional challenge against ‘alien gag law’

Proof that a higher education is not a sign of greater intelligence.

TORONTO STAR… A 26-year-old Canadian whiz kid who studied at Harvard Law School and clerked for U.S. Supreme Court Justice Antonin Scalia is fighting an American law that prohibits foreigners living there from contributing to political campaigns.

Yaakov Roth, a lawyer with the firm Jones Day in Washington, has filed a case against the Federal Election Commission, arguing that denying non-permanent residents the right to spend money on political campaigns violates their freedom of speech.

Roth, who is originally from Toronto, and his co-counsel Warren Postman represent two Canadians who live and work in New York City.

Benjamin Bluman, 26, a progressive lawyer from Vancouver, wants to make financial contributions to three political campaigns, including President Barack Obama’s re-election campaign. Asenath Steiman, 26, a conservative doctor from Toronto working at a New York hospital, would like to support Obama’s Republican opponent and contribute to the Club for Growth, an organization for fiscal conservatives.

But currently, to do so would be a crime.

“I found it kind of strange that as a human being who pays taxes in this country and works and follows the law, I’m not allowed to effectively speak my mind through my resources,” says Bluman, who has lived in New York since November 2009.

The case will be heard on May 12 by a special three-judge panel — a rare move made possible by a 2002 reform that allows constitutional challenges pertaining to campaign financing to be expedited. After that, it will most likely land in U.S. Supreme Court on appeal.

The Canadians’ case hinges on two basic arguments: that the First Amendment guarantees freedom of speech, even to non-permanent residents, and that political spending is a type of speech.

The federal statute in question, which Roth and Postman have dubbed the “alien gag law,” not only bans non-permanent residents from making contributions to political campaigns, but also from spending money independently in support of parties or candidates. For example, Bluman would also like to print and distribute pro-Obama pamphlets.

“In the real world, it takes money to express yourself,” says Roth. “You can’t speak effectively without spending money, and therefore if the government limits your ability to spend money on speech, it’s effectively restricting your ability to speak.”

In a landmark decision that could ease their way, the U.S. Supreme Court ruled last year that it was unconstitutional to limit corporate spending on political campaigns because of the First Amendment guaranteeing freedom of speech.

But in court filings, the Federal Election Commission insists the government must limit opportunities for political influence by those whose fundamental allegiances lie elsewhere.

Although the case is not yet widely known about, Rick Hasen, a visiting professor at the University of California Irvine School of Law, says it has the potential to be controversial.

Hasen says that if you follow the logic of the case to its natural conclusions, foreign governments and corporations would also be allowed to contribute to political campaigns — an idea he suspects the U.S. public would not like.

“I think there would be such a public outcry that the court would find a way to uphold some limitations on foreign spending,” he said.

Roth, however, insists they are only seeking rights for foreigners living in the U.S.

“We don’t think it would help those other entities at all,” he says.

Roth, who has been living in the U.S. for roughly seven years but is not a permanent resident, is in the same position as his plaintiffs.

He says the issue crosses party and ideological lines. In fact, he and his co-counsel also come from different political backgrounds: Roth is conservative and Postman was law clerk for Supreme Court Justice David Souter, a Republican who later joined the Supreme Court’s liberal wing.

There has been speculation online about who might be bankrolling the case. Roth said his law firm, Jones Day, has agreed to take on the lawsuit pro bono.

In Canada, only citizens and permanent residents can contribute to federal political parties and candidates.

2 Replies to “Canadians launch U.S. constitutional challenge against ‘alien gag law’”

  1. IMHO there is already too much influence foreign and domestic in the USA via the thousands of lobbyists in DC who ‘wine dine and pocket line’ many of our ‘esteemed’ Senators and Representatives. There are many questions pertaining to the source of campaign funds in the last presidential election. Something about this situation does not seem quite right. Vast sums of campaign funds from outside the US would lead to questions of integrity and undue foreign influence especially on the office of the president.

  2. I am with you Big Frank, only US citizens are allowed to vote and that is the way in all nations, the non citizens are also forbidden to contribute to election campaigns in other nations so why does the left think the US should be the exception?

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