prior restraint on distribution of obscene materials is constitutional
How later courts described this case
- prior restraint on distribution of obscene materials is constitutional
- discussing political function exception test
- First Amendment acknowledges no distinction between citizens and resident aliens
- state may bar aliens from positions as probation officers
Written by the judges who cited it.
The opinion
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THE COURT OF APPEALS FOR THE STATE OF WASHINGTON
ONEAMERICA VOTES, a Washington No. 83836-9-I
Nonprofit; ONEAMERICA, a Washington
Nonprofit; LOCAL #4121, DIVISION ONE
INTERNATIONAL UNION, UNITED
AUTOMOBILE, AEROSPACE, AND PUBLISHED OPINION
AGRICULTURAL IMPLEMENT
WORKERS OF AMERICA, a labor
organization; MUDIT KAKAR, an
individual; VIRGINIA FLORES, an
individual; and NAYON PARK, an
individual,
Appellants,
v.
STATE OF WASHINGTON, a political
subdivision; WASHINGTON STATE
ATTORNEY GENERAL’s OFFICE, an
executive department; BOB
FERGUSON, in his official capacity as
Attorney General; WASHINGTON
STATE PUBLIC DISCLOSURE
COMMISSION, a state agency; and
PETER LAVALLEE, in his official
capacity as Executive Director of the
PDC,
Respondents.
INTRODUCTION
ANDRUS, C.J. — Three non-citizen Washington residents, two advocacy
organizations, and a union challenge the constitutionality of the 2020 amendments
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No. 83836-9-I/2
to the Washington Fair Campaign Practices Act (FCPA) 1 and a Public Disclosure
Commission (PDC) regulation banning foreign nationals from making contributions
to political candidates and ballot measures. 2
The Challengers argue the contribution ban in RCW 42.17A.417(1) and
(2)(a) and the prohibition on foreign nationals’ participation in organizational
decisions to make donations in RCW 42.17A.417(2)(b), violate their free speech
and associational rights under article I, § 4 and § 5 of the Washington Constitution.
They further contend the law constitutes impermissible discrimination based on
alienage in violation of article I, § 12 of the Washington Constitution.
We hold that individuals who are neither United States citizens nor
permanent resident aliens do not have a constitutional right to make political
contributions in state and local elections, or to participate in any decision-making
regarding the financing of political contributions by the organizations with which
they affiliate. They do have a right to endorse candidates and ballot measures if
the endorsement is unrelated to an organization’s decision to finance a specific
candidate or ballot measure. Nothing in the FCPA prohibits this speech. To the
extent that the law restricts the speech or associational rights of the Organizational
Challengers, it does so narrowly to achieve a compelling state interest and
survives strict scrutiny. We therefore affirm the summary judgment in favor of the
State of Washington.
1
Ch. 42.17A RCW.
2
We refer to the plaintiff group as the “Challengers,” the “Individual Challengers,” or the
“Organizational Challengers” as appropriate to the context of each group’s arguments.
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No. 83836-9-I/3
LEGAL CONTEXT OF CONSTITUTIONAL CHALLENGE
In 1966, the United States Congress sought to limit foreign influence over
American elections by passing the Federal Elections Campaign Act, 3 prohibiting
agents of foreign governments from contributing to political candidates. Bluman v.
Federal Election Commission, 800 F. Supp. 2d 281, 283 (D. D.C. 2011) (citing
Pub. L. No. 89-486, § 8(a), 80 Stat. 244, 248 (1966)). Congress expanded the ban
in 1974 to make it unlawful for any foreign national 4 to contribute to any candidate
for elected office. Bluman, 800 F. Supp. 2d at 283 (citing Pub. L. No. 93-443 §
101(d), 88 Stat. 1263, 1267 (1974)). In 1998, after a congressional committee
found that foreign citizens had used “soft money” 5 contributions to political parties
to buy access to American political officials, it passed the Bipartisan Campaign
Reform Act of 2002 (BCRA), Pub. L. No. 107-155, § 303, 116 Stat. 81, 96 (2002),
expanding the ban to prohibit foreign nationals from expending funds for
campaigns or making contributions to political parties. Bluman, 800 F. Supp. 2d
at 284.
Under the BCRA, it is now unlawful for any foreign national to “directly or
indirectly” make a contribution or donation of money “in connection with a federal,
state or local election.” 52 U.S.C. § 30121(a)(1)(A). It is similarly unlawful for that
3
2 U.S.C. § 441e, now codified as 52 U.S.C. § 30121.
4
Congress defined “foreign national” as a government of a foreign country, a foreign
political party, a non-citizen residing outside the United States, and any individual living
inside the United States who is not a citizen or lawful permanent resident of the United
States. 52 U.S.C. § 30121(b)(1), (2); 22 U.S.C. § 611(b).
5
“Soft money” refers to contributions to political parties, rather than to candidates
themselves, which are intended to influence state or local elections. McConnell v. Fed.
Election Comm’n, 540 U.S. 93, 123, 124 S. Ct. 619, 157 L. Ed. 2d 491 (2003).
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No. 83836-9-I/4
foreign national to contribute to any political party, or to spend money on any
“electioneering communication.” 6 52 U.S.C. § 30121(a)(1)(B), (C).
The Federal Election Commission (FEC) also promulgated a regulation to
prohibit foreign nationals from participating in organizational decisions to spend
money in federal, state, or local elections:
Participation by foreign nationals in decisions involving election-
related activities. A foreign national shall not direct, dictate, control,
or directly or indirectly participate in the decision-making process of
any person, such as a corporation, labor organization, political
committee, or political organization with regard to such person’s
Federal or non-Federal election-related activities, such as decisions
concerning the making of contributions, donations, expenditures, or
disbursements in connection with elections for any Federal, State, or
local office or decisions concerning the administration of a political
committee.
11 C.F.R. § 110.20(i) (emphasis added).
In 2011, several foreign nationals living and working in the United States on
temporary work visas challenged the constitutionality of 52 U.S.C. § 30121(a).
Bluman, 800 F. Supp. 2d at 285. A three-judge panel 7 of the United States District
Court for the District of Columbia upheld the BCRA against a First Amendment
challenge. Id. at 281. It held the government may ban foreign national
contributions and expenditures. Id. at 289. The United States Supreme Court
6
An “electioneering communication” is any broadcast, cable, or satellite communication
which refers to a clearly identified candidate for federal office that is made within 30 days
of a primary election or political party caucus or convention, or within 60 days of a general
election. 52 U.S.C. § 30104(f)(3).
7
Under 28 U.S.C. § 2284(a), a district court of three judges “shall be convened when
otherwise required by Act of Congress.” Section 403(a) of the BCRA mandated that any
challenge to the constitutionality of the statute would be decided by a three-judge court in
the District of Columbia, convened under 28 U.S.C. § 2284. See Pub. L. 107-155, §
403(a).
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No. 83836-9-I/5
summarily affirmed this decision without opinion. Bluman v. Federal Election
Commission, 565 U.S. 1104, 132 S. Ct. 1087, 181 L. Ed. 2d 726 (2012).
In 2019, the United States Department of Justice issued its “Report on the
Investigation into Russian Interference in the 2016 Presidential Election” (the
“Mueller Report”), which documented the ways in which the Russian government
interfered in the 2016 presidential election in “sweeping and systematic fashion.”
That same year, a federal grand jury indicted an unnamed Russian national who
conspired with United States citizens to violate federal election laws.
In response to these events, the Washington legislature enacted SSB 6152,
now codified in chapter 42.17A RCW, amending the FCPA to ban foreign national
contributions in state and local elections. See LAWS OF 2020, Ch. 152, §§ 1-11.
The legislature found:
that the First Amendment rights of freedom of speech and free
association, as they relate to participating in elections, are core
values in the United States. The United States supreme court has
repeatedly held that these rights include the right to make campaign
contributions in support of candidates and ballot measures at the
federal, state, and local levels.
The legislature also finds, in accordance with federal law, that
these rights are reserved solely for citizens of the United States and
permanent legal residents, whether they act as individuals or in
association. The First Amendment protection for political speech
does not apply to foreign nationals, who are forbidden under 52
U.S.C. Sec. 30121 from directly or indirectly making political
contributions or financing independent expenditures and
electioneering communications, either individually or collectively
through a corporation or other association. Furthermore, federal law
prohibits any person from knowingly soliciting or receiving
contributions from a foreign national. Therefore, it falls to individual
states to help protect the prohibition on foreign influence in our state
and local elections by requiring certification that contributions,
expenditures, political advertising, and electioneering
communications are not financed in any part by foreign nationals and
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No. 83836-9-I/6
that foreign nationals are not involved in making decisions regarding
such election activity in any way.
SSB 6152, § 1 (2020) (emphasis added).
The state law, like federal law, now bans direct contributions by foreign
nationals 8 and prohibits anyone from making a contribution if a foreign national
participated in the decision to make it:
(1) A foreign national may not make a contribution to any
candidate or political committee, make an expenditure in support of
or in opposition to any candidate or ballot measure, or sponsor
political advertising or an electioneering communication.
(2) A person may not make a contribution to any candidate or
political committee, make an expenditure in support of or in
opposition to any candidate or ballot measure, or sponsor political
advertising or an electioneering communication, if:
(a) The contribution, expenditure, political advertising, or
electioneering communication is financed in any part by a foreign
national; or
(b) Foreign nationals are involved in making decisions
regarding the contribution, expenditure, political advertising, or
electioneering communication in any way.
RCW 42.17A.417. Every candidate and political committee must now certify to the
PDC that they have accepted no contributions financed in any part by a foreign
national and that foreign nationals were not involved in making decisions regarding
the contribution in any way. RCW 42.17A.418(1)(a), (b).
8
The law defines “foreign national” as:
(a) An individual who is not a citizen of the United States and is not lawfully
admitted for permanent residence;
(b) A government, or subdivision, of a foreign country;
(c) A foreign political party; and
(d) Any entity, such as a partnership, association, corporation, organization, or
other combination of persons, that is organized under the laws of or has its principal place
of business in a foreign country.
RCW 42.17A.005(24).
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No. 83836-9-I/7
The PDC subsequently promulgated WAC 390-16-330, a regulation
clarifying the law:
(a) For purposes of RCW 42.17A.417, and throughout chapter
42.17A RCW, a foreign national is “involved in making decisions
regarding the contribution, expenditure, political advertising, or
electioneering communication in any way” if the foreign national
directs, dictates, controls, or directly or indirectly participates in the
decision-making process regarding the financing any such
contribution, expenditure, advertisement, or communication.
(b) In addition to the criteria under (a) of this subsection, a
foreign national is involved in the decision-making regarding a
contribution, expenditure, political advertising, or electioneering
communication made by an entity that is a subsidiary, branch, unit,
or division of a foreign national, or otherwise established, financed,
maintained, or controlled by a foreign national, if the foreign national
has:
(i) Made an endorsement or recommendation to
support or oppose the same candidate or ballot proposition;
or
(ii) Directly or indirectly collaborated or consulted with
the entity on matters relating to the support of or opposition to
the same candidate or ballot proposition.
WAC 390-16-330(2).
FACTUAL BACKGROUND OF CURRENT CHALLENGE
A group of organizational and individual plaintiffs filed this suit claiming that
RCW 42.17A.417 and WAC 390-16-330 violate their free speech and association
rights under the State Constitution. They additionally contend the law violates the
state equal protection clause of article I, § 12.
Plaintiff OneAmerica was founded in the wake of September 11, 2001 to
advocate for “immigrant rights, education, economic and environmental justice,
voting rights, and immigrant integration.” OneAmerica seeks to identify leaders
among immigrant and refugee communities to help them develop skills to advocate
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No. 83836-9-I/8
for their respective communities. OneAmerica, with a staff of 30, is a family of
organizations: OneAmerica, a 501(c)(3) organization, OneAmerica Votes, a
501(c)(4) political organization, OneAmerica Votes Justice Fund, a Washington
political action committee, and OAV Justice for All PAC, a federal political action
committee.
OneAmerica Votes administers the OneAmerica Votes Justice Fund, which
makes contributions to and expenditures on behalf of candidates for state and local
elected office. Its funding decisions are based on recommendations from its Board
of Directors, one member of which is plaintiff Mudit Kakar, a lawyer and an Indian
citizen residing in Seattle and working in the United States under an H-1B visa.
Kakar has been the Chair of OneAmerica’s Fundraising and Development
Committee since 2020, personally donates to One America, and votes as a board
member on recommendations to support or endorse ballot measures.
OneAmerica also has a Grassroots Leadership Council, an advisory group
of immigrants and refugees who provide guidance to OneAmerica on political
strategy. The Council interviews electoral candidates and makes
recommendations to the Board of Directors about which candidates to endorse
and which ballot initiatives to support or oppose. Plaintiff Virginia Flores, a
Mexican citizen and self-described undocumented immigrant who has lived in
Washington since at least 2014, serves on the Council and participates in the
Council’s process of recommending candidate endorsements.
Local #4121 of the International Union, United Automobile, Aerospace, and
Agricultural Implement Workers of America (Local 4121) is a labor union,
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No. 83836-9-I/9
registered as a 501(c)(5) tax-exempt organization, representing 6,000 academic
students and post-doctoral researchers at the University of Washington. Local
4121 is governed by a Joint Council, composed of an Executive Board and Head
Stewards. It participates in campaign finance activities through the UAW Western
States Political Action Committee (Western States PAC). Local 4121 has a
Political Working Group that researches ballot initiatives and electoral campaigns,
issues candidate questionnaires, and interviews candidates to determine which
are the best advocates for workers, science, and economic justice.
Twenty-five percent of Local 4121 members are international students or
scholars here on temporary resident visas. Local 4121 allows non-citizens and
non-permanent residents to participate in the Joint Council and its Political Working
Group. Plaintiff Nayon Park, a South Korean citizen enrolled in a 5-year Ph.D.
chemistry program and in the United States on an F-1 student visa, sits on Local
4121’s Joint Council and serves as a Head Steward. Park votes on candidate
endorsement recommendations from the Political Working Group, which in turn
provides direction to the Western States PAC on which electoral candidates to
support and how much money to spend on their campaigns.
On cross motions for summary judgment, the parties agreed that Kakar,
Park, and Flores are “foreign nationals” under RCW 42.17A.005(24), and are
prohibited from making direct monetary contributions under RCW 42.17A.417(1).
They also agreed that OneAmerica and Local 4121 are prohibited under RCW
42.17A.417(2)(a) from making any contributions financed in any way by any of
these individuals or any other foreign nationals. Finally, the parties agreed that
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No. 83836-9-I/10
RCW 42.17A.417(2)(b) prohibits both OneAmerica and Local 4121 from making
any contribution or expenditure if they allow any foreign national, including the
three individual challengers here, to participate in the decision-making process
regarding the contribution or expenditure.
The parties disputed, however, the scope of the prohibitions contained in
RCW 42.17A.417(2)(b) and its accompanying WAC provision. The Challengers
contended that the law bars foreign nationals from engaging in internal
organizational discussions about candidates or ballot measures or from advising
their organizations on matters of political advocacy. The State argued that the law
is narrowly drafted to preclude participation by foreign nationals only in financing
decisions. The trial court held that RCW 42.17A.417 and WAC 390-16-330 pass
constitutional muster. The Challengers appeal.
ANALYSIS
A. Standard of Review
We review the constitutionality of a statute de novo. State v. Watson, 160
Wn.2d 1, 5, 154 P.3d 909 (2007). We also review a summary judgment order de
novo and perform the same inquiry as the trial court. Borton & Sons, Inc. v.
Burbank Props., LLC, 196 Wn.2d 199, 205, 471 P.3d 871 (2020).
B. Justiciability
The State argues that the Challengers lack the requisite injury to challenge
RCW 42.17A.417 or WAC 390-16-330. We disagree.
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No. 83836-9-I/11
The Uniform Declaratory Judgment Act (UDJA) 9 permits any person “whose
rights, status or other legal relations” are affected by a state statute to ask a court
to determine that statute’s validity. RCW 7.24.020. In the absence of issues of
major public importance, the UDJA requires a justiciable controversy (1) which is
an actual, present and existing dispute, or the mature seeds of one, as
distinguished from a possible, dormant, hypothetical, speculative, or moot
disagreement, (2) between parties having genuine and opposing interests, (3)
which involves interests that must be direct and substantial, rather than potential,
theoretical, abstract or academic, and (4) a judicial determination of which will be
final and conclusive. Diversified Indus. Dev. Corp. v. Ripley, 82 Wn.2d 811, 815,
514 P.2d 137 (1973).
The State contends the Challengers lack standing under the third element
of the Diversified Industries test. To-Ro Trade Shows v. Collins, 144 Wn.2d 403,
414, 27 P.3d 1149 (2001). 10 “The kernel of the standing doctrine is that one who
is not adversely affected by a statute may not question its validity.” Walker v.
Munro, 124 Wn.2d 402, 419, 879 P.2d 920 (1994). To establish standing, the
plaintiffs must establish: (1) the interest sought to be protected is within the zone
of interests being regulated by the law in question and (2) the challenged action
has caused injury in fact to that party. Grant County Fire Prot. Dist. No. 5 v. City
of Moses Lake, 150 Wn.2d 791, 802, 83 P.3d 419 (2004).
9
Ch. 7.24 RCW.
10
Our Supreme Court has recognized an exception to Diversified’s standing test when a
party raises an issue of “broad overriding public import.” Walker v. Munro, 124 Wn.2d
402, 432, 879 P.2d 920 (1994). The Challengers do not argue that this case falls into this
exception so we do not consider it here.
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No. 83836-9-I/12
The Challengers fall within the zone of interests regulated by RCW
42.17A.417. The law plainly bans political contributions from or financed by foreign
nationals and bans foreign nationals from being “involved in making decisions
regarding” political contributions. In passing the bill, the legislature found that “the
First Amendment rights of freedom of speech and free association, as they relate
to participating in elections . . . are reserved solely for citizens of the United States
and permanent legal residents, whether they act as individuals or in association.”
LAWS OF 2020, ch. 152, § 1. Zakar, Park, and Flores are all foreign nationals who
have made political contributions in the past or participate in organizations that
make political contributions and are actively involved in the decision-making
process surrounding those contributions. These individuals are exactly those
whose conduct is regulated by RCW 42.17A.417.
The State argues that neither the statute nor the WAC prohibits anyone from
endorsing a candidate or ballot measure because the endorsement restriction of
WAC 390-16-330(2)(b)(i) applies only to foreign-controlled organizations. But the
statute does prohibit organizations, including OneAmerica and Local 4121, from
making any contribution if a foreign national is “involved” in the decision to make
that contribution. RCW 42.17A.417(2)(b). Under the WAC, “involvement” includes
“directly or indirectly participating” in a financing decision. WAC 390-16-330(2)(a).
If an organization’s decision to endorse a candidate or ballot measure occurs in
conjunction with its decision to endorse, and foreign nationals participate in those
internal discussions, the Challengers contend this activity would be prohibited
under the “indirect participation” prong of subsection (2)(a), regardless of whether
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No. 83836-9-I/13
the endorsement provision of subsection (2)(b) applies. The Challengers clearly
raise a justiciable issue regarding the scope of the prohibition as laid out in WAC
390-16-330(2)(a).
We reach the same conclusion regarding the Organizational Challengers.
The State argues that the Organizational Challengers are domestic entities and do
not fall under the separate rules for foreign-controlled entities. But RCW
42.17A.417(2)’s contribution restriction extends to any “person.” RCW
42.17A.005(39) defines “person” as “an individual, partnership, joint venture,
public or private corporation, association, federal, state or local governmental
entity or agency however constituted, candidate, committee, political committee,
political party, executive committee thereof, or any other organization or group of
persons, however organized.” This part of the statute is not limited to foreign-
controlled entities. They submitted declarations explaining how the organizations
must change their operating procedures if foreign nationals cannot participate in
funding decisions. This evidence satisfies the actual injury prong of the standing
test. The Organizational Challengers have standing, even if they are not foreign-
controlled entities.
C. RCW 42.17A.417(1) and (2)(a)’s Ban on Campaign Contributions by
Foreign Nationals
The Challengers contend RCW 42.17A.417(1) and (2)(a) violate article I, §
5 of the Washington Constitution because spending money on political activities is
“classically protected free speech and association,” which the State cannot curtail.
They argue that Bluman, which upheld an identical contribution ban under the First
Amendment, does not control because our state constitution offers broader free
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No. 83836-9-I/14
speech protections than does the First Amendment. They maintain that RCW
42.17A.417(1) and (2)(a) constitute a prior restraint on protected speech,
categorically forbidden by the state constitution, therefore rendering a Gunwall11
analysis unnecessary. Finally, the Challengers contend that under Gunwall, we
should hold that foreign nationals have the state constitutional right to make
financial contributions to candidates and ballot measures. We reject these
arguments.
1. Prior Restraint
The Challengers first argue that the contribution ban is an impermissible
prior restraint under our State Constitution. They advance this claim because our
Supreme Court has recognized that article I, § 5 is less tolerant than the First
Amendment of overly broad restrictions on speech when the restrictions rise to the
level of a prior restraint. Ino Ino, Inc. v. City of Bellevue, 132 Wn.2d 103, 117, 937
P.2d 154 (1997).
But RCW 42.17A.417’s foreign national contribution ban is a “prior restraint”
only if it prohibits protected speech. A prior restraint is an administrative action or
court order forbidding protected communications prior to their occurrence. Voters
Educ. Comm. v. Wash. State Pub. Disclosure Comm’n, 161 Wn.2d 470, 494, 166
P.3d 1174 (2007); State v. J-R Distrib., Inc., 111 Wn.2d 764, 776, 765 P.2d 281
(1988). A law is not an impermissible prior restraint if the expression falls into one
of the narrowly defined exceptions to protected speech. Id. at 777 (prior restraint
on distribution of obscene materials is constitutional).
11
State v. Gunwall, 106 Wn.2d 54, 720 P.2d 808 (1986).
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No. 83836-9-I/15
The Challengers argue that their right to make financial contributions is
protected speech under Washington State Republican Party v. Washington State
Public Disclosure Commission, 141 Wn.2d 245, 4 P.3d 808 (2000). But that case
did not arise in the context of foreign national campaign contributions or
expenditures. In that case, our Supreme Court considered a PDC determination
that the Republican Party violated state election laws by using soft money to
purchase a television advertisement critical of then gubernatorial candidate Gary
Locke. Id. at 250. It held that former RCW 42.17.640’s dollar limitations on issue-
oriented advertisements by political parties—speech protected by the First
Amendment—was unconstitutional. Id. It did not address or even discuss
campaign contribution limits imposed on foreign nationals. In a case where a legal
theory is not discussed in an opinion, we do not consider that case to be controlling
on a future case where the legal theory is properly raised. Berschauer/Phillips
Const. Co. v. Seattle Sch. Dist. No. 1, 124 Wn.2d 816, 824-25, 881 P.2d 986
(1994).
There is no Washington precedent supporting the Challengers’ contention
that a ban on campaign contributions by foreign nationals constitutes a prior
restraint on free speech in violation of article I, § 5. Under this scenario, we cannot
accept the Challengers’ argument that a Gunwall analysis is unnecessary.
Although our Supreme Court has recognized that article I, § 5 extends broader
protections than does the First Amendment in certain contexts, see O’Day v. King
County, 109 Wn.2d 796, 804-05, 749 P.2d 142 (1988) and State v. Reece, 110
Wn.2d 766, 778, 757 P.2d 947 (1988), it has also indicated that article I, § 5 is not
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No. 83836-9-I/16
always more protective. The inquiry must focus on “the specific context in which
the state constitutional challenge is raised.”12 Ino Ino, 132 Wn.2d at 115. We thus
cannot say categorically that article I, § 5 always provides greater protection than
the First Amendment. Because no Washington court has addressed a law
prohibiting foreign nationals from making campaign contributions under article I, §
5, we must consider whether the State Constitution is more protective than the
First Amendment in this specific context under Gunwall.
2. Gunwall Factors Applied to Foreign National Campaign Contributions
The Challengers argue that the Gunwall factors support a conclusion that
foreign nationals have an article I, § 5 right to make campaign contributions in this
state. We disagree.
Under Gunwall, we consider the six nonexclusive neutral criteria to
determine whether, in this particular context, the Washington state constitution
should be considered as extending broader rights than the federal constitution: “(1)
the textual language; (2) differences in the texts; (3) constitutional history; (4)
preexisting state law; (5) structural differences; and (6) matters of particular state
or local concern.” 106 Wn.2d at 58. Analyzing these factors, we conclude that
article I, § 5 does not guarantee to foreign nationals the right to make political
campaign contributions in state or local elections, either for candidates or ballot
measures.
12
For example, laws criminalizing the possession of obscenity, prohibiting telephone
harassment, and imposing liability for making false or defamatory statements receive no
greater protections under article I, § 5 then they do under that provision’s federal
counterpart. Ino Ino, 132 Wn.2d at 115-16.
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No. 83836-9-I/17
The first two Gunwall factors focus our attention on the text of the two
constitutions. 106 Wn.2d at 61. Article I, § 5 provides that “[e]very person may
freely speak, write and publish on all subjects, being responsible for the abuse of
that right.” The First Amendment is textually different: “Congress shall make no
law . . . abridging the freedom of speech.”
The Challengers argue that the reference in article I, § 5 to “every person,”
indicates the intent to extend full free speech protections, including the right to
make campaign contributions, to foreign nationals. But foreign nationals enjoy
many of the same First Amendment rights as U.S. citizens do. See Bluman, 800
F. Supp. 2d at 286-87. The right to free speech extends to all “persons,” including
aliens residing in the United States. Bridges v. Wixon, 326 U.S. 135, 148, 65 S.
Ct. 1443, 89 L. Ed. 2103 (1945) (resident aliens protected by First Amendment in
context of deportation); See also Am.-Arab Anti-Discrimination Comm. v. Reno, 70
F.3d 1045, 1064 (9th Cir. 1995) (First Amendment acknowledges no distinction
between citizens and resident aliens). The identity of the individuals enjoying the
protections of article I, § 5 is thus not substantively different than those who benefit
from the First Amendment.
That foreign nationals enjoy the right “to speak, write and publish” does not
mean they also have the right to participate in elections as an exercise of speech.
Under Gunwall, the text of other relevant statutory provisions of the state
constitution provides guidance. 106 Wn.2d at 61. Here, there are several other
constitutional provisions reserving this right to citizens. The right to vote, for
example, is limited to “citizens of the United States.” W ASH. CONST., art. VI, § 1.
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No. 83836-9-I/18
The right to sign an initiative petition is restricted to “legal voters.” WASH. CONST.,
art. II, § 1(a). And only “registered voters” may sign referendum petitions. W ASH.
CONST., art. II, § 1(b). These provisions support the proposition that the right to
free speech guaranteed by article I, § 5 does not extend to the right of foreign
nationals to participate in all aspects of Washington electoral politics.
The third Gunwall factor looks to our history of the adoption of a particular
state constitutional provision to determine if it reflects an intention to confer greater
protection from the state government than the federal constitution affords from the
federal government. 106 Wn.2d at 61.
The Washington Constitution was adopted at a constitutional convention
that convened in July and August 1889. Arthur S. Beardsley, Sources of
Washington Constitution: Comparative Study of Articles, in CONSTITUTIONS OF THE
UNITED STATES AND OF THE STATE OF W ASHINGTON (1955) (hereafter “Beardsley”);
THE JOURNAL OF THE WASHINGTON STATE CONSTITUTIONAL CONVENTION 1889, at 1,
449 (Beverly Paulik Rosenow, editor 1999) (hereafter “Journal”). According to
Beardsley,
The Constitution of Washington was the result of a study of the
constitutions of many states. The constitutions of Oregon and
California influenced it the most; but a considerable number of its
sections show similar and identical language taken from the
constitutions of Wisconsin, Missouri, Colorado, and Indiana. A
lesser number of sections show the influence of the constitutions of
Illinois, Pennsylvania, Texas, and Ohio. Altogether provisions from
twenty-three state constitutions were copied into the final draft.
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No. 83836-9-I/19
Beardsley at 166. Article I, § 5 was almost identical in text to the California
Constitution of 1879 13 and similar to that found in the Oregon Constitution of
1857. 14 W. Lair Hill, who supplied the Washington delegates with an initial draft
model constitution, replicated these provisions. 15 Beardsley at 168; Wilfred J.
Airey, A History of the Constitution and the Government of Washington Territory
455 (University of Washington Ph.D. thesis, 1945).
The Journal contains no indication that the standing committee tasked with
recommending a final version of a Bill of Rights, or the delegate who approved the
committee’s recommendation, spent any time debating the text of article I, § 5.
The committee’s July 25, 1889 report proposed the language we see today in our
free speech provision. 16 Journal, at 153-54. The delegates adopted it without
change on August 6, 1889. Journal, at 268-69. This history does not reveal a
basis for concluding that the framers sought—with the language they chose to
13 Article I, § 9 of the California Constitution of 1879 provided: “Every citizen may freely
speak, write, and publish his sentiments, on all subjects, being responsible for the abuse
of that right; and no law shall be passed to restrain or abridge the liberty of speech or of
the press.” https://archives.cdn.sos.ca.gov/collections/1879/archive/1879-
constitution.pdf.
14
Article I, § 8 of the Oregon Constitution of 1857 provided: “No law shall be passed
restraining the free expression of opinion, or restricting the right to speak, write, or print
freely on any subject whatever; but every person shall be responsible for the abuse of this
right.” https://sos.oregon.gov/blue-book/Documents/state-1857-constitution1.pdf.
15
Just before the delegates convened, W. Lair Hill, an attorney in Oregon and California,
with experience as a code writer of Oregon and the former editor of the Portland
Oregonian, and a new resident of Seattle, prepared, at the request of the Oregonian, a
draft model state constitution. Beardsley, at 165. The Hill draft was used by the
convention delegates as the working basis on which to build the new constitution. Id.
16
On July 11, 1889, delegate Allen Weir proposed alternative language for this article:
“The right of free speech written, printed, or spoken, when not infringing the rights of
others, shall forever remain inviolate, and shall be secured to every citizen.” Journal, at
14, 50-51. There is no record of any debate occurring regarding the different proposed
versions of this article.
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No. 83836-9-I/20
include in article I, § 5—to grant broader speech rights to foreign nationals than
those contained in the First Amendment.
The Challengers argue the history of the State Constitution’s adoption
operates in their favor because the framers granted certain aliens the right to vote
before they became citizens. They contend that the framers must not have
intended to tie citizenship to the right to participate in elections. But the
Challengers overstate the political rights extended to aliens at the ratification of the
Washington Constitution. The original text of article VI, entitled “Elections and
Elective Rights,” provided:
All male persons of the age of twenty-one years or over, possessing
the following qualifications, shall be entitled to vote at all elections:
They shall be citizens of the United States; they shall have lived in
the state one year, and in the county ninety days, and in the city,
town, ward or precinct thirty days immediately preceding the election
at which they offer to vote. . . . Provided, further, that all male persons
who at the time of the adoption of this Constitution are qualified
electors of the Territory, shall be electors.
WASH. CONST. art. VI, § 1 (1889) (emphasis added). The “territorial qualified
electors” exception in the original version of article VI tracks the state’s Organic
Act, in which Congress conferred the right to vote on United States citizens and
those non-citizens who had declared an intention to become citizens:
That every white male inhabitant above the age of twenty-one years,
who shall have been a resident of said Territory at the time of the
passage of this act, and shall possess the qualifications hereinafter
prescribed, shall be entitled to vote at the first election . . . . Provided,
That the right of suffrage and of holding office shall be exercised only
by citizens of the United States above the age of twenty-one years,
and those above that age who shall have declared on oath their
intention to become such, and shall have taken an oath to support
the Constitution of the United States and the provisions of this act.
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Organic Act, ch. 90, § 5, 10 Stat. 172 (1853) (emphasis added). Thus, the only
individuals who could vote in territorial elections were white males who were either
United States citizens or who had declared under oath, prior to statehood, that they
intended to become a United States citizen. Foreign nationals were not allowed
to vote in either territorial elections before statehood, or in Washington elections
after statehood, unless they had declared their intent to become citizens before
the constitution was ratified. 17 In 1974, article VI, § 1 was amended again to
eliminate the territorial qualified elector language and now explicitly limits the right
to vote to United States citizens. CONST. art. VI, § 1 (1974). Constitutional history
thus also does not operate in favor of an independent state analysis. 18
Under the fourth Gunwall factor, pre-existing state law, including statutory
law, “may also bear on the granting of distinctive state constitutional rights.” 106
Wn.2d at 61. Gunwall recognized that state law may have been more responsive
17
In 1896, the state constitution was amended to limit the right to franchise to United
States citizens and grandfathered in only those persons previously qualified as territorial
electors. Wash. Const. Art. VI, § 1 (1896) (Amendment 2, 1895 Session Laws Ch. 37, p.
60, approved November 1896). See Robert Utter & Hugh Spitzer, THE W ASHINGTON
STATE CONSTITUTION 132 (2d ed. 2013) (1896 amendment to article VI, § 1 did not affect
any previously enfranchised electors).
18
We cannot leave unstated our racist history as exemplified by the original version of
Article II, § 33, which banned land ownership by aliens, “other than those who in good faith
have declared their intention to become citizens of the United States,” a provision that
remained in effect until repealed in 1965. See Amendment 42, Senate Joint Resolution
No. 20, p. 2816 (November 8, 1966). This provision was apparently taken in part from the
Oregon constitution. Airey at p. 458. It reflected a territorial law, passed in 1886, making
it illegal for aliens incapable of becoming citizens or alien corporations to hold property in
the Washington Territory. Airey at p. 156, n. 2; Mark Lazarus, An Historical Analysis of
Alien Land Law: Washington Territory & State 1853-1889, 12 U. PUGET SOUND L. REV.
197, 220 (1988) (citing Act of Jan. 29, 1886, 1885-86 Wash. Laws 102, repealed by Act
of Feb. 3, 1927, ch. 56, § 1, 1927 Wash. Laws 45). Given the rampant racism that led to
these alien land laws, it is hard to imagine the framers intended to give foreign nationals
the right to participate in electoral politics when it prohibited them from owning real
property. See Journal at 519, 549-50.
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No. 83836-9-I/22
to concerns of its citizens “long before they are addressed by analogous
constitutional claims.” Id. As a result, “[p]reexisting law can thus help to define the
scope of a constitutional right later established.” Id. at 62.
The Challengers argue that preexisting state law operates in their favor
because, until 2020, no state law regulated the rights of foreign nationals with
regard to political contributions. But the legislature’s silence on the issue prior to
2020 does not weigh heavily in either direction because federal law has banned
such contributions since 1974. The lack of state laws addressing the rights of
foreign nationals to participate in elections does not evidence any intent to protect,
or to deny, those rights within the state. The Challengers have cited no case or
statute—be it contemporary with the ratification of the Washington constitution or
more recent—addressing a foreign national’s right to participate in elector politics
within the state.
Under the fifth and sixth Gunwall factors, we examine whether the structure
of the two constitutions differs and whether the issue is a matter of particular state
interest or local concern. 106 Wn.2d at 62. The fifth Gunwall factor recognizes
that the federal constitution is structurally different from the state constitution.
While the federal constitution is a grant of enumerated powers to the federal
government, the state constitution limits the sovereign power of the state. Id. This
factor always favors an independent analysis of a state constitutional provision.
State v. Smith, 150 Wn.2d 135, 152, 75 P.3d 934 (2003). But it otherwise provides
little analytical guidance.
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No. 83836-9-I/23
The final factor, like the first four, does not weigh in favor of an independent
reading of article I, § 5 in the context of foreign political contributions. While we
agree that laws governing campaign contributions for state and local political
candidates and ballot measures are a matter of state and local concern, similar
laws are also of a national concern. The Challengers argue that the legislature’s
interest in banning foreign national contributions is purely local, affecting only the
rights of Washington residents. But the text of the law belies this argument. The
legislature, in enacting SSB 6152, specifically invoked 52 U.S.C. § 30121,
indicating that “it falls to individual states to help protect the prohibition on foreign
influence in our state and local elections by requiring certification that contributions,
expenditures, political advertising, and electioneering communications are not
financed in any part by foreign nationals.” LAWS OF 2020, ch. 152, sec. 1. Thus,
the legislature contemplated that state law works in conjunction with federal law to
ban the involvement of foreign nationals in domestic elections.
Moreover, the fact that there is a federal statute prohibiting foreign national
political contributions in state and local elections also indicates that this matter is
a national concern. In Foley v. Connelie, 435 U.S. 291, 295-96, 98 S. Ct. 1067,
55 L. Ed. 2d 287 (1978), the Supreme Court recognized the “State’s historical
power to exclude aliens from participation in its democratic political institutions,” as
a part of the sovereign’s obligation to “preserve the basic conception of a political
community.” (quoting Sugarman v. Dougall, 413 U.S. 634, 647-48, 93 S. Ct. 2842,
37 L. Ed. 2d 853 (1973)). The Bluman court, citing both Foley and Sugarman,
stated “[i]t is fundamental to the definition of our national political community that
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No. 83836-9-I/24
foreign citizens do not have a constitutional right to participate in, and thus may be
excluded from, activities of democratic self-government.” 800 F. Supp. 2d at 288.
Excluding foreign nationals from campaign finance activities is not a matter of
particular state or local concern.
We conclude that the article I, § 5 right to free speech is co-extensive with
the right guaranteed by the First Amendment in the context of the right of foreign
nationals to make or participate in making contributions to state and local
candidates or ballot measures. 19 We therefore follow First Amendment precedent
in addressing the specific arguments raised by the Challengers.
3. Foreign National Contributions under Bluman
Under existing First Amendment jurisprudence, foreign nationals have no
constitutional right to participate financially in federal, state or local elections. In
Bluman, a district court held that Congress may restrict the right of foreign
nationals to make campaign contributions because they have no constitutional
right to engage in this type of political speech: “It is fundamental to the definition of
our national political community that foreign citizens do not have a constitutional
right to participate in, and thus may be excluded from, activities of democratic self-
government.” 800 F. Supp. 2d at 288.
The Challengers argue that Bluman is of questionable vitality given the
United States Supreme Court’s subsequent decision in McCutcheon v. Federal
Election Commission, 572 U.S. 185, 203, 134 S. Ct. 1434, 188 L. Ed. 2d 468
(2014). In McCutcheon, the Supreme Court addressed a challenge from a
19
The Challengers do not argue that article I, § 4 also provides more protection than does
the federal constitution so we need not address that issue here.
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No. 83836-9-I/25
prospective donor and the Republican National Committee to federal aggregate
limits on contributions to candidates and noncandidate political committees. 572
U.S. at 194-95. In invalidating the limits, the court recognized that campaign
contributions are protected speech because a contribution “ ‘serves as a general
expression of support for the candidate and his views’ and ‘serves to affiliate a
person with a candidate.’ ” Id. at 203 (quoting Buckley v. Valeo, 424 U.S. 1, 21-
22, 96 S. Ct. 612, 46 L. Ed. 2d 659 (1976)). Making campaign contributions, it
stated, is participation “in an electoral debate that we have recognized is ‘integral
to the operation of the system of government established by our Constitution.’ ” Id.
at 204 (quoting Buckley, 424 U.S. at 14).
But nothing in McCutcheon calls into question restrictions on foreign
national political spending. Its holding—that state aggregate limits on political
donations by eligible donors are impermissible unless targeted to prevent quid pro
quo corruption—did not reach this issue at all. 572 U.S. at 191. Thus, McCutcheon
is not precedential in the context of this case. See Ret. Plans Comm. of IBM v.
Jander, __ U.S. __, 140 S. Ct. 592, 597, 205 L. Ed. 2d 432 (2020) (Gorsuch, J.,
concurring) (“questions which merely lurk in the record, neither brought to the
attention of the court nor ruled upon, are not to be considered as having been so
decided as to constitute precedents.”) (quoting Webster v. Fall, 266 U.S. 507, 511,
45 S. Ct. 148, 69 L. Ed. 411 (1925)).
Moreover, the Supreme Court affirmed the decision in Bluman, making it
binding precedent, with or without an opinion accompanying that decision, until the
Supreme Court tells us otherwise. See Hicks v. Miranda, 422 U.S. 332, 344, 95
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No. 83836-9-I/26
S. Ct. 2281, 45 L. Ed. 2d 223 (1975) (votes to affirm summarily are votes on the
merits of a case and lower courts are bound by summary decisions of the Court
until such time as the Court informs them that they are not). In United States v.
Singh, 979 F.3d 697, 711 (9th Cir. 2020), the Ninth Circuit held that the Supreme
Court’s summary affirmance of Bluman was binding precedent on the issue of
whether a foreign national has a constitutional right to donate money to state
senate candidates.
Additionally, the Supreme Court has cautioned courts that its “decisions
remain binding precedent until [it] see[s] fit to reconsider them, regardless of
whether subsequent cases have raised doubts about their continued vitality.”
Hohn v. United States, 524 U.S. 236, 252-53, 118 S. Ct. 1969, 141 L. Ed. 2d 242
(1998). The Supreme Court does not overrule prior opinions sub silentio. Shalala
v. Ill. Council on Long Term Care, Inc., 529 U.S. 1, 18, 120 S. Ct. 1084, 146 L. Ed.
2d 1 (2000). There is thus no basis for concluding that McCutcheon overruled
Bluman.
The Challengers argue that McCutcheon rejected the notion that the
government has a compelling interest in limiting foreign citizen participation in
activities of American democratic self-government. They cite to Thompson v.
Hebdon, 7 F.4th 811, 826 (9th Cir. 2021) as a recent case in which a court rejected
“democracy-based arguments for restricting political expenditures by non-
residents” based on McCutcheon. But Thompson, like McCutcheon, did not
address campaign contributions by foreign nationals. In that case, the Ninth Circuit
held that Alaska’s dollar limits on campaign contributions were unsupported by the
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No. 83836-9-I/27
state’s interest in protecting its system of self-governance. Id. at 826. It rejected
Alaska’s reliance on Bluman to justify campaign dollar limits on eligible donors, but
reaffirmed the interest in restricting donations from foreign nationals:
The plaintiffs in Bluman were foreign citizens who sought the right to
participate in the United States campaign process by, among other
things, making financial contributions to candidates. They argued
they should be treated the same as American citizens who, though
unable to vote, are permitted to make campaign contributions. The
court rejected that argument and based its holding on the conclusion
that the plaintiffs, in contrast to American citizens who are unable to
vote, were, by definition, outside the “American political community.”
Thus, contrary to the dissent’s statement that Bluman cannot “be
distinguished on the grounds that it involved a distinction between
United States citizens and foreign nationals,” … that distinction was
the very basis for the Bluman court’s holding.
7 F.4th at 827, n.7 (internal citations omitted). The jurisprudential foundation of
Bluman—that foreigners have no constitutional right to fund electoral campaigns
in the United States—remains undisturbed by either McCutcheon or Thompson.
4. Strict Scrutiny of Ban on Foreign National Campaign Contributions
Although we conclude that foreign nationals do not have a free speech right
to make political campaign contributions, we nevertheless also conclude that RCW
42.17A.417(1) and (2)(a) survive strict scrutiny.
We generally presume a statute to be constitutional, but the State “bears
the burden of justifying a restriction on speech.” Ino Ino at 114. Any statute that
purports to regulate political speech based on its content is subject to strict
scrutiny. Rickert v. Public Disclosure Comm’n, 161 Wn.2d 843, 848, 168 P.3d 826
(2007). Under this standard, the State must demonstrate that the law “is necessary
to serve a compelling state interest and that it is narrowly drawn to achieve that
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No. 83836-9-I/28
end.” Id. (quoting Burson v. Freeman, 504 U.S. 191, 198, 112 S. Ct. 1846, 119 L.
Ed. 2d 5 (1992)).
The Bluman court upheld 52 U.S.C. § 30121 under strict scrutiny. 800 F.
Supp. 2d at 285. It recognized that “[t]he government may exclude foreign citizens
from activities ‘intimately related to the process of democratic self-government.’ ”
Id. at 287 (quoting Bernal v. Fainter, 467 U.S. 216, 220, 104 S. Ct. 2312, 81 L. Ed.
2d 175 (1984)). It follows, the court said, that the government “has a compelling
interest for purposes of First Amendment analysis in limiting the participation of
foreign citizens in activities of American democratic self-government.” Id. at 288.
Bluman governs our analysis of RCW 42.17A.417(1) and (2)(a). The
State’s interest in prohibiting foreign nationals from making political contributions
and the corresponding interest in prohibiting citizens or domestic organizations
from using money from foreign nationals to make such contributions is a
compelling one. Both prohibitions advance the same goal: to exclude those who
are not citizens from participating in the State’s political processes.
The Challengers contend that Bluman is at odds with our Supreme Court’s
decision in Nielsen v. Washington State Bar Association, 90 Wn.2d 818, 585 P.2d
1191 (1978), in which the Supreme Court invalidated Washington’s Admission to
Practice Rule (APR) 2(B)(2), requiring applicants for admission to the bar be U.S.
citizens or in the process of becoming a citizen. Id. at 820. We disagree.
In Nielson, our Supreme Court acknowledged that under Foley, 435 U.S.
291, a government may pass laws requiring citizenship for jurors, voters, and law
enforcement officers because these roles involve a direct participation in the
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No. 83836-9-I/29
execution of public policy. Nielsen, 90 Wn.2d at 825. But it held that requiring
citizenship as a condition to practice law was inappropriate. It reasoned:
an attorney does not, by virtue of his oath, have the right to exercise
the broad power over people generally, which the Court in Foley
found significant. He has no power to arrest citizens as does a police
officer. He has no power to judge citizens as do judicial officers or
jurors. Rather, he “is engaged in a private profession, important
though it be to our system of justice. In general[,] he makes his own
decisions, follows his own best judgment, collects his own fees and
runs his own business.”
Id. at 824-25 (quoting Cammer v. United States, 350 U.S. 399, 405, 76 S. Ct. 456,
100 L. Ed. 474 (1956)). “The responsibilities of one who earns a livelihood as a
lawyer do not involve unique matters which lie at the heart of our political
institutions and justify a citizenship requirement.” Id. at 823.
Nielsen is consistent with years of Supreme Court precedent drawing a
distinction between citizenship requirements to engage in non-governmental
professions and those same requirements imposed on individuals serving a
political function. In Cabell v. Chavez-Salido, 454 U.S. 432, 102 S. Ct. 735, 70 L.
Ed. 2d 677 (1982), it held that strict scrutiny is not applicable to citizenship
requirements when the interests at issue are political, rather than economic.
“[O]ur scrutiny will not be so demanding where we deal with matters
resting firmly within a State’s constitutional prerogatives [and]
constitutional responsibility for the establishment and operation of its
own government, as well as the qualifications of an appropriately
designated class of public office holders . . . .” And in those areas
the State’s exclusion of aliens need not “clear the high hurdle of ‘strict
scrutiny,’ because [that] would ‘obliterate all the distinctions between
citizens and aliens, and thus depreciate the historic value of
citizenship.
The exclusion of aliens from basic governmental processes is
not a deficiency in the democratic system but a necessary
consequence of the community's process of political self-definition.
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No. 83836-9-I/30
Self-government, whether direct or through representatives, begins
by defining the scope of the community of the governed and thus of
the governors as well: Aliens are by definition those outside of this
community.
Id. at 438-40 (citations omitted). Under this “political function” doctrine, “laws that
exclude aliens from positions intimately related to the process of democratic self-
government” are constitutionally permissible. Bernal, 467 U.S. at 220.
Nielsen merely recognized the economic-political distinction of Cabell. Its
reasoning does not apply to Bluman or here, where the challenged law restricts
the political, and not economic, activities of aliens. The issue is not how foreign
nationals choose to earn a living, but whether they can be included in activities that
are inherently public and at the heart of the American political process. Nielsen
does not cast doubt upon the State’s ability to limit the participation of foreign
citizens in activities of American democratic self-government. RCW 42.17A.417(1)
and (2)(a) are constitutional.
D. RCW 42.17A.417(2)(b)’s Ban on Foreign National Participation in
Financial Decision-Making
The Organizational Challengers next contend that RCW 42.17A.417(2)(b)
and WAC 390-16-330(2) violate their free speech and associational rights
guaranteed by article I, § 4 and article I, § 5.
RCW 42.17A.417(2)(b) prohibits any person from contributing to a
candidate or political committee when “foreign nationals are involved in making
decisions regarding the contribution, expenditure, political advertising, or
electioneering communication in any way.” 20 WAC 390-16-330(2) provides:
The FEC regulation, 11 C.F.R. § 110.20(i), contains essentially the same language as
20
RCW 42.17A.417(2)(b), and prohibits contributions from organizations if foreign nationals
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No. 83836-9-I/31
(a) For purposes of RCW 42.17A.417, and throughout chapter
42.17A RCW, a foreign national is “involved in making decisions
regarding the contribution, expenditure, political advertising, or
electioneering communication in any way” if the foreign national
directs, dictates, controls, or directly or indirectly participates in the
decision-making process regarding the financing any such
contribution, expenditure, advertisement, or communication.
(b) In addition to the criteria under (a) of this subsection, a
foreign national is involved in the decision-making regarding a
contribution, expenditure, political advertising, or electioneering
communication made by an entity that is a subsidiary, branch, unit,
or division of a foreign national, or otherwise established, financed,
maintained, or controlled by a foreign national, if the foreign national
has:
(i) Made an endorsement or recommendation to support or
oppose the same candidate or ballot proposition; or
(ii) Directly or indirectly collaborated or consulted with the
entity on matters relating to the support of or opposition to the same
candidate or ballot proposition.
(Emphasis added). The Challengers contend these provisions effectively dictate
how the organizations structure their internal deliberations, regulate who may
participate in such deliberations, prevent the Individual Challengers from fulfilling
their organizational duties to advise and vote on matters of political advocacy, and
deprive the organizations of the input of officers and members with the greatest
insight into the needs of the immigrant and international student communities.
1. Endorsements, Recommendations, Collaboration, and Consultation
under WAC 390-16-330(2)(b)
To the extent the Challengers argue that the language of WAC 390-16-
330(2)(b)(i) and (ii) make it impossible for any foreign national to endorse a
“directly or indirectly participate in the decision-making process of any person, such as a
corporation, labor organization, political committee, or political organization with regard to
such person's Federal or non-Federal election-related activities, such as decisions
concerning the making of contributions.” See 67 Fed. Reg. 69950 (November 19, 2002).
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No. 83836-9-I/32
candidate or ballot measure, or to speak at organizational meetings in favor of or
against any candidate or ballot measure, we disagree with their reading of this
regulation.
By its very text, WAC 390-16-330(2)(b)’s endorsement prohibition applies
only when contributions are made by an entity that “is a subsidiary, branch, unit,
or division of a foreign national, or otherwise established, financed, maintained, or
controlled by a foreign national.” Neither OneAmerica nor Local 4121 falls into the
category of foreign-controlled organization covered by the regulation. We reject
any constitutional challenge to the regulation on that basis.
2. Direct and Indirect Participation in Financing Decisions under RCW
42.17A.417(2)(b) and WAC 390-16-330(2)(a)
The Challengers also contend the decision-making ban is constitutionally
impermissible because it prohibits foreign nationals and their organizations from
endorsing a candidate or ballot measure, or debating internally the organization’s
desire to make an endorsement, under the “indirect participation” prong of the
WAC. We disagree with this broad interpretation of the statute and corresponding
regulation.
The statute and regulation, as written, prohibit foreign nationals only from
internally debating or voting on organizational donations to support or oppose
specific candidates or specific ballot measures. This is consistent with Bluman in
which the federal court held that foreign nationals do not have a constitutional right
to engage in such “express advocacy” activities. The Supreme Court, in analyzing
various restrictions under the federal BCRA, has drawn a distinction between
permissible laws restricting express advocacy for or against a specific candidate,
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No. 83836-9-I/33
see McConnell v. Fed. Election Comm’n, 540 U.S. 93, 206, 124 S. Ct. 619, 157 L.
Ed. 2d 491 (2003), overruled in part by Citizens United v. Fed. Elections Comm’n,
558 U.S. 310, 366, 130 S. Ct. 876, 175 L. Ed. 2d 753 (2010), and impermissible
laws restricting more general issue advocacy. See Fed. Election Comm’n v.
Wisconsin Right to Life, 551 U.S. 449, 481, 127 S. Ct. 2652, 168 L. Ed. 2d 329
(2007).
In Bluman, the federal district court emphasized this distinction and
interpreted the BRCA narrowly to preclude only express advocacy relating to a
specific candidate. 800 F. Supp. 2d at 284-85. RCW 42.17A.417(2) similarly
extends only to express advocacy activities. The statute prohibits an organization
from making contributions to a “candidate or political committee” if a foreign
national is involved in the decision to do so, but nothing in RCW 42.17.A.417(2)
prohibits foreign nationals from engaging in issue advocacy, either within an
organization or publicly on behalf of that organization. 21
“Indirect participation” in a financing decision, as that phrase is used in WAC
390-16-330(2)(a), does not prohibit foreign nationals from debating or voting to
make donations to support or oppose public policy issues unrelated to a specific
candidate or ballot measure campaign. Foreign nationals may participate, both
through discussion and monetary contributions, in decisions to advance their
affiliated organizations’ goals, when the discussion and contribution arises in the
context of issue advocacy. We read the statute narrowly, as the court did in
21
Because Bluman narrowly interpreted the BCRA as banning only express advocacy, it
cannot be read to support a ban on issue advocacy by foreign nationals. J. Goldenziel,
M. Cheema, The New Fighting Words?: How U.S. Law Hampers the Fight Against
Information Warfare, 22 U. PENN. J. CONST’L L. 81, 131 (2019).
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No. 83836-9-I/34
Bluman, to prohibit only foreign national participation in decisions to provide
financial support for or against a specific candidate or a specific ballot measure.
Nor does the statute prohibit foreign nationals from endorsing a candidate
or a ballot measure when that endorsement does not occur in the context of a
decision to fund a particular candidate’s or ballot measure’s campaign. Foreign
nationals are entitled to discuss, debate, and endorse any candidate or ballot
measure they choose as long as their endorsement is not tied to, or made in
conjunction with, their organization’s decision to fund that candidate or ballot
measure. This narrow reading of the statute is important because it helps us
decide if it passes constitutional muster.
First, under Bluman, participation in express advocacy activities by foreign
nationals is not protected speech. If foreign nationals do not have a constitutional
right to make political contributions themselves, then they also have no
constitutional right to decide how to use the funds of others to influence domestic
elections.
Second, the ban on indirect participation in decision-making also passes
strict scrutiny. As previously noted, the State has a compelling interest in “limiting
the participation of foreign citizens in activities of American democratic self-
government.” Bluman, 800 F. Supp. 2d at 288. The FCPA advances this interest
by prohibiting foreign nationals from influencing state and local elections with their
own or their organizations’ political donations.
We also conclude the State has demonstrated that the statute is narrowly
drawn to achieve its compelling interest because it focuses on express advocacy
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No. 83836-9-I/35
and does not prohibit political speech other than the financing of specific
candidates or ballot measures.
The Challengers rely on Pilloud v. King County Republican Central
Committee, 189 Wn.2d 599, 404 P.3d 500 (2017), to argue the statute is not
narrowly tailored. In Pilloud, our Supreme Court invalidated RCW 29A.80.061’s
requirement that political party precinct committees elect, rather than appoint,
district chairs for each legislative district. The court held that the statute infringed
the party’s freedom of association under the First Amendment by regulating the
political party’s internal structure. Id. at 603. The court recognized that the State
has a compelling interest in preserving the integrity of its election process and
could interfere with a political party’s internal affairs when necessary to ensure that
elections are fair and honest. Id. at 604. The court rejected the argument that the
statute was necessary to prevent county committees from exceeding campaign
contribution limits because there was no evidence to support it and other campaign
finance laws already prohibited county political committees from exceeding those
limits. Id. Because the infringement on the party’s internal affairs was not proven
necessary to ensure fair and orderly elections, it deemed the statute
unconstitutional. Id.
The Challengers argue that as in Pilloud, the State has failed to
demonstrate that dictating who, within any organization, can decide how to spend
money in an election is necessary to protect the integrity of our elections. But this
case is distinguishable from Pilloud. Nothing in RCW 42.17A.417(2)(b) dictates to
the Organizational Challengers how they select their members, officers, advisors,
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No. 83836-9-I/36
or board members. They are free to invite foreign nationals into their membership
and to appoint or elect them to positions on their boards or advisory councils. The
only restriction is that once there, the foreign nationals cannot participate in
decisions to finance a specific candidate or ballot measure campaign.
Moreover, unlike the tenuous connection between the internal process for
selecting party district chairs and the integrity of state elections, the relationship
between RCW 42.17A.417(2)(b) and the State’s compelling interest in preserving
the political community is clear and direct:
Political contributions and express-advocacy expenditures are an
integral aspect of the process by which Americans elect officials to
federal, state, and local government offices. Political contributions
and express-advocacy expenditures finance advertisements, get-
out-the-vote drives, rallies, candidate speeches, and the myriad
other activities by which candidates appeal to potential voters. We
think it evident that those campaign activities are part of the overall
process of democratic self-government.
Bluman, 800 F. Supp. 2d at 288. By prohibiting foreign nationals from deciding
which political campaigns should receive organizational contributions, RCW
42.17A.417(2)(b) directly advances its goal of excluding them from the democratic
political process.
The Challengers also do not address the more specific compelling interest
advanced by RCW 42.17A.417(2)(b): the need to ensure there are no loopholes in
the direct contribution ban of RCW 42.17A.417(2)(a). If a foreign national could
simply donate to a domestic organization and then vote to direct those funds to
support a specific campaign, they would be able to circumvent the contribution ban
altogether. Federal courts recognize that the FEC’s ban on donors making
contributions in the name of another serves a compelling interest in preventing
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No. 83836-9-I/37
circumvention of limits on contributions by individuals, including foreign nationals.
See Fed. Election Comm’n v. Rivera, 333 F.R.D. 282, 286 (S.D. Fla. 2019). The
PDC’s regulation extending to “indirect participation” by foreign nationals is
similarly designed to prevent circumvention of the direction contribution ban.
The Challengers finally argue that the State has adequately safeguarded its
interests by limiting statewide legislative and executive offices to citizens under
article II, § 7 and article III, § 25 of the Washington Constitution. The test, however,
is not whether other methods exist to protect a compelling government interest,
but whether the interest would be achieved less effectively absent the regulation.
Matter of Recall of Inslee, 199 Wn.2d 416, 430, 508 P.3d 635 (2022). A regulation
is narrowly tailored as long as “the means chosen are not substantially broader
than necessary to achieve the government’s interest.” Id. at 431 (quoting Ward v.
Rock Against Racism, 491 U.S. 781, 800, 109 S. Ct. 2746, 105 L. Ed. 2d 661
(1989)). As the State points out, the constitutional limitations on who can run for
elective office would not ensure that foreign nationals do not fund the campaigns
of eligible candidates.
The State has a compelling interest in limiting foreign financial participation
in our political processes. RCW 42.17A.417(2)(b)’s ban on foreign national
involvement in decisions regarding the distribution and financing of political
contributions is narrowly tailored to advance that interest. The law does not
prevent general political discussions, nor does it dictate who can and cannot be
associated with the organizational challengers. Its prohibitions are limited to the
campaign finance decisions of those organizations with which foreign nationals are
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No. 83836-9-I/38
involved. We conclude that the prohibition on foreign national participation in
“express advocacy” passes strict scrutiny.
E. Discrimination Based on Alienage Under Article I, Section 12
The Challengers argue that RCW 42.17A.417 facially discriminates against
Washington residents based on alienage in contravention of article I, § 12. We
reject this argument as well.
The equal protection clauses of the Fourteenth Amendment and article I, §
12 of the Washington Constitution require that people similarly situated under the
law receive similar treatment from the State. In re K.R.P., 160 Wn. App. 215, 229,
247 P.3d 491 (2011). To determine whether a statute violates equal protection,
one of three tests is employed—strict scrutiny, intermediate scrutiny, or the rational
basis test. Id. The appropriate level of scrutiny depends on the nature of the
classification and the rights involved. Id.
In general, suspect classifications such as alienage, are subject to strict
scrutiny, as are laws that affect fundamental rights or liberties. State v. Osman,
157 Wn.2d 474, 484, 139 P.3d 334 (2006). Intermediate scrutiny applies if the
statute implicates both an important right and a semi-suspect class not
accountable for its status. K.R.P., 160 Wn. App. at 229. In the absence of either
a fundamental right or a suspect class, or an important right and a semi-suspect
class, a law will receive rational basis review. Id. at 229-30. If strict scrutiny
applies, the State must show that the law serves a compelling state interest by the
least restrictive means practically available. Bernal, 467 U.S. at 227.
The Supreme Court has developed a narrow exception to the rule that
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No. 83836-9-I/39
discrimination based on alienage triggers strict scrutiny. Under the political
function exception, aliens are only considered a suspect class for legislation that
harms their economic interests or “str[ikes] at the non-citizens’ ability to exist in the
community.” Foley, 435 U.S. at 294-95 (states require police officers to be
citizens). Aliens are not considered a suspect class for laws that are “intimately
related to the process of democratic self-government.” Bernal, 467 U.S. at 220
(discussing political function exception test); Ambach v. Norwick, 441 U.S. 68, 99
S. Ct. 1589, 60 L. Ed. 2d 49 (1979) (state may bar aliens who have no intent to
become citizens from teaching in public schools); Cabell, 454 U.S. at 447 (state
may bar aliens from positions as probation officers). If alienage is not a suspect
classification under this economic-political distinction, then the State need only
justify the classification by showing some rational relationship between the interest
it seeks to protect and the limiting classification. Foley, 435 U.S. at 296.
RCW 42.17A.417 does not harm any foreign national’s ability to earn a living
in our community. Its focus is alien participation in electoral campaigns. While the
rational basis test may be the most applicable, we nevertheless conclude that even
if strict scrutiny applies, the statute does not violate the Challengers’ equal
protection rights. The State has a compelling interest in limiting the participation
of non-Americans in the activities of democratic self-government and a law that
excludes foreign nationals from political spending is the least restrictive means
available of achieving that interest.
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CONCLUSION
RCW 42.17A.417 does not violate the Challengers’ free speech rights or
their rights of association under article I, § 4 or § 5, or violate article I, § 12 of the
Washington Constitution. The State has a compelling government interest in
excluding foreign nationals from participating in election financing, directly with
their own contributions, and indirectly by voting to have organizations with which
they affiliate make such contributions. The statute and accompanying regulation,
WAC 390-16.330, do not prohibit foreign nationals from participating in issue
advocacy or from endorsing candidates or ballot measures when those
endorsements are not made in the context of their organizations’ decision to
provide the candidates or ballot measure campaigns with financial support. The
law serves a compelling government interest and is narrowly tailored to meet that
interest.
We therefore affirm.
WE CONCUR:
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