A Contradiction, Without Comment

Without issuing an explanation, yesterday the Supreme Court upheld a federal law banning resident aliens from making campaign contributions. It is regrettable but perhaps telling that the Court chose not to explain why it agreed with the lower court: The case reveals obvious problems with its penchant for First Amendment absolutism in campaign-finance cases, most notably its decision in Citizens United.

The implicit message in the court's decision is straightforward: Elections are different from regular speech. If I were a resident alien, any attempt by the federal government to censor this post would be a black-letter violation of the First Amendment. But it would remain illegal—and properly so—for me to send a $30 check to a candidate for public office. This is not because this donation would count as anything other than "free speech" but because the courts have reasoned that maintaining the integrity of American elections by protecting them from undue influence from foreign donors is more important than an absolute right to free speech. I think this is correct, but the problem is that the Republican appointees of the Roberts Court have "forgotten" that similar considerations are relevant to expenditures made by American citizens—and corporations—as well. Campaign spending is related to political speech and is hence entitled to First Amendment protection, but the integrity of the political process and the need to maintain some degree of civic equality with respect to the electoral process are also core constitutional values. When it comes to American citizens, the Court should also put more weight on the latter factors than it's currently willing to.

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