February 01, 1999 Policy

Campaign Contributions by Legal Residents

99M118

American Bar Association
Standing Committee on Election Law
Coordinating Committee on Immigration Law
National Asian Pacific American Bar Association
Hispanic National Bar Association

Report to the House of Delegates

Recommendation

RESOLVED, That the American Bar Association opposes any diminution of the existing rights of legal permanent residents to make campaign contributions and expenditures to the same extent as U.S. citizens.

Report

Current federal law allows citizens of the United States and legal permanent residents, who are persons admitted to the United States as immigrants to reside here permanently, to contribute to and make expenditures in support of federal election campaigns, subject to the limits of the Federal Election Campaign Act (FECA). There have been several recent attempts in Congress to deny legal permanent residents their constitutional rights to participate in the political process. Historically, the American Bar Association has been regarded as a natural and vocal defender of constitutional rights, particularly First Amendment rights, of individuals residing in the United States. This resolution recommends that the Association continue on this course, by ensuring that the constitutional rights of legal permanent residents to participate in the political process are not diminished.

Historical Overview

The origin of the ban on political contributions by foreign nationals was created by the 1966 amendments to the Foreign Agents Registration Act (FARA). This ban was instituted as a means of minimizing foreign influence in the American governing process by imposing limits on the activities of foreign nationals. In 1971, the Federal Election Campaign Act (FECA) was adopted by the Congress in an effort to require full disclosure of campaign contributions and expenditures. In 1974, Congress amended the FECA by expressly removing the ban on contributions and expenditures by legal permanent residents. The FECA actually excludes legal permanent residents from its definition of foreign nationals. The term "foreign national," was expressly defined as "an individual who is not a citizen of the United States and who is not lawfully admitted for permanent residence." Thus, under current law individuals who are citizens of the United States or who are lawfully admitted for permanent residence are eligible to contribute to federal election campaigns. This distinction by the drafters of the amendments to the FECA is important. Senator Lloyd Bentsen, the original sponsor of the amendment stated that, [the] amendment would exempt foreigners with resident immigrant status from the ban on contributions by foreigners. There are many resident immigrants in the United States who have lived here for years and who spend most of their adult lives in this country; they pay American taxes and for all intents and purposes are citizens of the United States except perhaps in the strictest legal sense of the word. These individuals should not get precluded from contributing to the candidate of their choice.

The desire to prevent foreign influence in our governing process is valid, and certainly was the genesis of the 1966 amendments to the FARA. But the subsequent 1974 amendment to the FECA indicates that legal permanent residents, individuals who lawfully reside in the United States as a step towards gaining American citizenship, are not considered the source of threats of undue foreign influence.

There have been numerous proposals in the last session of Congress that the FECA be changed to prevent noncitizens from making contributions to and expenditures in support of candidates for federal office. The rationale is that if individuals do not have the right to vote, they should not be able to make political contributions. This logic runs contrary to fact and the underpinnings of American democracy. As an example, there are segments of the population that are permitted to make contributions (such as minors, certain organizations, and some convicted felons) yet cannot vote. They are allowed to make contributions as a measure of their freedom of political speech. This reasoning is soundly grounded in the Constitution. One's ability to “speak" in the political process does not and should not be determined by the right to vote.

Constitutional Considerations

A primary tenet of the First Amendment is to protect and encourage the rights of individuals and organizations to participate in our civic process. This unfettered ability to be involved in the political system, openly and without fear of reprisal, is an important privilege that should not be taken lightly. Past and present court decisions have continued to uphold the First Amendment as a safeguard for unconstrained dialogue and debate related to governmental affairs. In the landmark decision of Buckley v. Valeo, the Supreme Court held that the right of individuals to make campaign contributions or expenditures is a clearly protected First Amendment right. Our fundamental rights of free speech and association in the political system are an integral part of this nation's democratic process.

These First Amendment rights are not restricted to citizens. The Bill of Rights clearly extends these protections to legal permanent residents, who must obey the laws of this country, pay taxes and are required to register for the draft to the same extent as citizens. Attendant to the protections of freedom of speech is that the authority of the government to regulate privileges bestowed by the First Amendment is severely limited. The Supreme Court has consistently held that, “‘[w]hen a law burdens core political speech’, the law should be upheld ‘only if it is narrowly tailored to serve an overriding state interest.’” Clearly, in situations involving participation in the political process, the role of the government, as the protector of the rights and privileges embodied in the Constitution, must be weighed to the appropriate standard against its role as a regulator of the political process. Any and all measures to remove such protected rights must be clearly framed in this context.

Legal permanent residents represent approximately 4% of the total U.S. population. During their progress toward citizenship, immigrants frequently marry U.S. citizens, and have children, purchase homes and start businesses. The incidence of “mixed families” of immigrants and citizens is extremely high. 67% of immigrant-headed households contain one or more native-born citizens. Legal permanent residents also participate in virtually all segments and aspects of American society. They work as professionals, laborers, educators, serve in the military, and operate businesses. In addition, they are required to pay federal, state and local taxes to the same extent as U.S. citizens, including income derived from all sources within the United States and abroad. Legal permanent residents, as members of our communities, are stakeholders in America who share the same concerns for quality education, decent healthcare, safe streets, and responsible civic leadership, as do citizens. 

The query of whether or not contributions by legal permanent residents create an atmosphere of undue “foreign” influence on the political process must survive the exacting “strict scrutiny” test afforded protected First Amendment rights. For a quarter of a century, contributions and expenditures by legal permanent residents have not been treated any differently than those of citizens.

Constitutional issues aside, it should be noted that under the FECA, contributions and expenditures by legal permanent residents are disclosed in the same manner as contributions and expenditures by citizens. Disclosure requirements are a valid and proven means of preventing undue influence or the perception of undue influence by any individual or group of individuals, whether a citizen or a legal permanent resident. Thus, the current system incorporates a measure of assurance that contributions by legal permanent residents do not have the taint of “foreign influence.”

Conclusion

Legal permanent residents are valuable members of our communities. They must abide by the same laws as citizens. and as such they are also subject to the same disclosure requirements and contributions limitations as citizens. Legal permanent residents care about and have a vested interest in our education system, our economy, our healthcare system, and our environment, and ultimately in our political process. Their participation in this process should not be perceived as tainted or as a means to exert undue foreign influence. Rather, it is a sign of their intent and commitment to the democratic process and an investment in our nation's future. The American Bar Association should endeavor to protect the constitutional rights of legal permanent residents to continue to participate in the political process of this nation.

Respectfully submitted,


Christine A. Varney, Chair
February 1998