Volokh Conspiracy: Is there a right to contribute to out-of-state elections?

Josh Blackman links to an interesting new speech by (retired) Justice Stevens about the Courts campaign finance jurisprudence. Among other things, Justice Stevens argues that there ought to be little protection (or no protection?) for campaign contributions made across state lines. He begins . . .:

In the first sentence of his controlling opinion [in McCutcheon v. FEC] the Chief Justice correctly states that there is no right more basic to our democracy than the right to participate in electing our political leaders. 188 L. Ed.2d 468, 482. And in his concluding paragraph he correctly describes that right as the First Amendment right of citizens to choose who shall govern them. Id., at 507 (Emphases added).

McCutcheons complaint, however, makes it clear that his objection to the federal statute was based entirely on its impairment of his ability to influence the election of political leaders for whom he had no right to vote. He is an Alabama citizen; in the 2012 election cycle he made equal contributions to different candidates, only two of whom were from Alabama. The other thirteen were campaigning in California, Ohio, Indiana, Maryland, North Carolina, Oklahoma, Texas, and Virginia. Of primary significance is the fact that his only complaint about the federal statute was its prohibition against his making contributions in 2014 to candidates in twelve other non-Alabama elections Colorado, Connecticut, Florida, Georgia, Hawaii, Minnesota, Utah, Washington, and Wisconsin.

To the best of my knowledge in none of the Courts cases prior to McCutcheon has the Court even mentioned a citizens supposed right to participate in elections in which he or she has no right to vote. It surely has not characterized it as a basic right of unparalleled importance.

Among other things, Justice Stevens draws on Bluman v. FEC, an opinion by Judge Kavanaugh that held that non-resident aliens had no right to make contributions or expenditures about American elections, and that was summarily affirmed (unanimously!) by the Supreme Court.

This is an interesting point, although I am not at all convinced by Justice Stevenss analysis. For a different take, here is an excerpt from Jessica Bulman-Pozens recent article, Partisan Federalism:

Bluman v. FEC: Political Engagement Across State Lines

In recent years, political engagement across state lines has increased dramatically. This engagement is not limited to out-of-state spending for federal representatives, but also extends to state electoral contests and referenda. In the 2012 Wisconsin gubernatorial recall election, for instance, out-of-state contributions made up a majority of Governor Scott Walkers arsenal and nearly a third of challenger Tom Barretts funds. For South Dakotas 2006 referendum on abortion, a substantial majority of the funds for both sides came from other states. As one commentator puts it: Means of communication, fundraising and also campaigning are becoming nationaland its affecting state and even local races.

Cross-state engagement furnishes powerful evidence of partisan federalism. For one thing, party organizations are among the most active cross-state participants; the Democratic and Republican Governors Associations have poured hundreds of millions of dollars into state races in the past decade.261 Party actors recognize the power of the states as platforms for national conflict. But so too do individuals, who get involved directly in out-of-state politics for many reasons. In some cases, a donor might contemplate moving to a different state to take advantage of a new policy or visiting to benefit from the policy during a briefer stay. In other cases, one states decisions may effectively set policy for the entire nation. But in perhaps the largest number of cases, Americans do not stand to benefit immediately or directly from out-of-state political involvement. Instead, they seek to create momentum for a particular policy or political party, to build a real-life example to inform national debate, or simply to take comfort in knowing that their preferences are actual policyand their partisan group is in control somewhere. By channeling money toward states other than their own and embracing the kind of surrogate representation I have explored in Part III, these individuals are enacting partisan federalism.

If we see cross-state political participation, however, it is not because existing federalism doctrine or theory supports the practice. Instead, it is because such activity has been protected as expression under the First Amendment. Today, only Alaska and Hawaii impose any limits on out-of-state contributions, and no state limits out-of-state expenditures. Although the Alaska Supreme Court upheld the states residency-based limits, citing deep suspicions of the motives and wisdom of those who, from outside its borders, wish to remold Alaska, federal courts have rejected, on First Amendment grounds, attempts by other states to impose similar restrictions. Courts have also largely invalidatedas inconsistent with the First Amendmentstate requirements that petition circulators be state residents. While these courts have focused on the expressive dimensions of cross-border contributions and expenditures and have not considered their validity from a federalism perspective, a recent case raises the question of whether such expressive activity undermines American federalism and may accordingly be proscribed. In Bluman v. FEC, a three-judge panel of the D.C. District Court took up a loose end left by the Supreme Courts holding in Citizens United v. FEC: whether the Government has a compelling interest in preventing foreign individuals or associations from influencing our Nations political process. In a decision summarily affirmed by the Supreme Court, the court upheld a provision of federal law that prohibits foreign nationals from making contributions or expenditures in connection with federal, state, or local elections. The court reasoned that the case did not turn on the First Amendment questions that have dominated campaign finance jurisprudence but rather a foundational question about the definition of the American political community. It is fundamental to the definition of our national political community, the court maintained, that foreign citizens do not have a constitutional right to participate in, and thus may be excluded from, activities of democratic self-government. Recognizing political contributions and expenditures as integral to electoral processes, the court proceeded to define them as both speech and participation in democratic self-government. Accordingly, it reasoned, limitations on foreign contributions and expenditures are all part of the sovereigns obligation to preserve the basic conception of a political community.

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Volokh Conspiracy: Is there a right to contribute to out-of-state elections?