Section 441e of the U.S. Code prohibits “foreign nationals”—all noncitizens except lawful permanent residents—from making any contribution or expenditure in any federal, state, or local election. In Bluman v. Federal Election Commission, the Supreme Court summarily affirmed a three-judge district court’s decision to uphold the law based on the government’s compelling interest in preventing foreign influence over U.S. elections. Notably, Bluman’s holding was animated by its reasoning that the extent of First Amendment protection should be directly tied to the aliens’ stake in American society—a reflection of the Supreme Court’s jurisprudence since the middle of the twentieth century that seeks to accord constitutional rights to noncitizens based on their stake in society, also known as the “stake theory.” By contrast, during the end of the nineteenth century and early twentieth century, the Supreme Court focused not on an alien’s stake, but on his location—so long as an alien was within the territorial jurisdiction of the United States he was entitled to constitutional protection. This Note argues that the First Amendment’s identity-neutral guarantee of freedom of speech is incompatible with the stake theory. In the context of freedom of speech and independent expenditures, denying First Amendment protection because of the speaker’s inadequate stake grants the government enormous power to restrict speech and conflicts with numerous First Amendment principles. Instead, this Note proposes that the First Amendment’s guarantee of freedom of speech should override the plenary power as applied to aliens located within the territorial jurisdiction of the United States.
What's at Stake?: Bluman v. Federal Election Commission and the Incompatibility of the Stake-Based Immigration Plenary Power and Freedom of Speech,
Nw. U. L. Rev.