Is the Ban on Campaign Donations by Foreigners Constitutional?
The ban on campaign donations and election-related activities by foreigners has not been tested in the courts. For example, the plaintiffs in the recently decided Supreme Court case of McConnell v. Federal Election Comm’n did not challenge the ban. However, the Court’s decision in that case–along with prior Supreme Court precedent–casts doubt on the ban’s constitutionality. While the Supreme Court upheld most of BCRA in the McConnell case, it invalidated a ban on campaign contributions by minors (that is, persons under 18). And it did so through reasoning that would seem to apply to the foreigner ban (a neighboring provision of the same statutory scheme) as well. The Court’s brief discussion of the minor ban in McConnell consisted of two steps: First, the Court recited the proposition that “minors enjoy the protection of the First Amendment.” Second, the Court found that the government had not offered a sufficiently compelling justification for a flat ban on the exercise of minors’ f
