[I]t is undisputed that the government may bar foreign citizens from voting and serving as elected officers. It follows that the government may bar foreign citizens (at least those who are not lawful permanent residents of the United States) from participating in the campaign process that seeks to influence how voters will cast their ballots in the elections. Those limitations on the activities of foreign citizens are of a piece and are all “part of the sovereign’s obligation to preserve the basic conception of a political community.”
While today’s decision is a rare and welcome victory for the proposition that there are limits on people’s (or corporations’) ability to buy elections, it is unlikely to be the end of the road for this case. Federal law allows this case to be appealed directly to the Supreme Court, and it gives the justices far fewer tools to avoid deciding the case than they normally have. So the case will almost certainly be in front of the justices in the near future.
It’s worth noting however that Judge Kavanaugh is not simply one of George Bush’s judges, he is a former Supreme Court clerk who is widely believed to be on the short list for potential GOP nominees to the high court. Accordingly, his vote to uphold the law suggests that this challenge has a rocky path ahead of it — even in front of this Supreme Court.
Amusingly, Judge Kavanaugh’s opinion also includes a brief citation to foreign law — “[i]t bears mentioning, moreover, that plaintiffs’ home countries — Israel and Canada — and many other democratic countries impose similar restraints on political spending by foreign citizens. See, e.g., Canada Elections Act [and] Knesset Election Law.” While this citation to foreign law is entirely appropriate, Senate conservatives have repeatedly claimed when a judge cites foreign law they might as well be tearing our Constitution into itty-bitty pieces. Both Justice Sonia Sotomayor and Justice Elena Kagan suffered through blistering questioning during their confirmation hearings because they refused to pretend that foreign legal systems have absolutely nothing whatsoever to teach America.
Indeed, the far right’s disdain for foreign law is so intense that Kavanaugh may have taken himself out of the running for a nomination to a higher Court. In light of the fact his fellow Supreme Court shortlister Judge Jeffrey Sutton just rendered himself ineligible for a promotion by rejecting a challenge to the Affordable Care Act, it remains to be seen whether any judge in the country can pass the Tea Party’s purity test the next time a Republican president needs to nominate someone for the Supreme Court.