Professor Michael Morley looks to campaign finance jurisprudence as a guide to what the Supreme Court might do in the Evenwel person-one vote case. He argues that the Court has spoken decisively to the question of whether of certain ineligible voters–foreign nationals—have a right to participate in democratic self-government.  In Bluman v. Federal Election Commission, a three-judge court decision that the Justices summarily affirmed, the court held that foreign nationals may be barred from spending money, through contributions or independent expenditures, to influence elections.  800 F. Supp. 2d 281 (2011).  It follows from that, Professor Morley concludes, that foreign nationals need not be included in the population count on which state legislative apportionment is based.

Morley’s use of campaign finance law is intriguing, and he finds this perspective missing from all the briefs filed with the Court in Evenwel.  But he did miss one, the Democratic National Committee’s, which explicitly questions how US citizens in eligible to vote could be excluded from apportionment arithmetic – – that is, read out of the formally represented political community – – while enjoying a constitutional right to contribute to the same candidates who are free to reject them as constituents. (Note: I am on the brief, with other Perkins colleagues).  This is the case of minor children, 17 years and younger.  In McCain-Feingold, Congress moved to prohibit minors from making contributions at all, only to be blocked by the Court in McConnell.  Now minors remain free to contribute as a constitutional right, provided that the contribution is made knowingly and with their own money. Should the Court conclude that states may disregard minor children for apportionment purposes, it will have drawn the unappetizing picture of a representative democracy in which these young citizens receive representation only for purchase.

Morley agrees that this is an untenable result, and he would locate the line there, at US citizenship, and let Bluman do the work of keeping out foreign nationals (other than lawful permanent residents).  The next question is whether campaign finance jurisprudence translates all that neatly, and as Morley presents it, into the apportionment context.

One could say instead that a foreign national is properly barred from making contributions to elect their favored candidates, but not appropriately denied recognition as a member of the political community that the candidate, once elected, represents. We may not wish the electoral system skewed in favor of wealthy foreign interests, and we may specifically protect against the possibility that they buy access to a selection process in which they have no right to vote.  But retaining all residents of whatever nationality within a legislator’s recognized, represented constituency merely recognizes that all are individuals with common interests and that it would be a strange vision of political representation to encourage elected representatives to disregard a number of them on the basis of nationality.

The Bluman court acknowledges that it was concerned only with certain “activities” of foreign nationals—and “only a certain form of expressive activity closely tied to the voting process.” Id. at 290.  The same foreign national who may not directly spend to influence elections may fund support or opposition to ballot initiatives or other forms of public policy advocacy.  So a foreign national may in fact, participate in democratic self-government, and he or she is a member of the political community—if not in the one way “closely tied to the voting process” that determines the election of candidates to public office.  It is unclear, then, how the Bluman analysis requires the conclusion that, for the years that they may reside in a legislative district, foreign nationals—in the Bluman case, Canadians (one of whom is also a citizen of Israel)—would not qualify as constituents and are owed no duty at all of representation.

Professor Morley suggests that lawful permanent residents are probably to be treated differently, as they are now under federal campaign finance law, which allows them to make contributions on the same basis as any other citizen.  The Bluman court saw merit in the distinction between these and other foreign nationals, stressing that their commitment to the US residence was longer term and that many serve in the Armed Forces.

The more immediate question Morley raises, however, is whether the right to representation is connected somehow to the right to make campaign contributions or expenditures.  There is a problem with putting too much weight on this analysis in addressing the question of foreign nationals, and in particular in distinguishing between lawful permanent residents and foreign nationals who are here, maybe for years, but on temporary visas, like the Bluman plaintiffs. It would suggest that you count as a constituent, and you will be counted, if you can also give your representative campaign contributions. This is not a compelling vision of “political community.”

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