As I had hoped and expected, the Supreme Court issued a summary affirmance this morning in the Bluman v. FEC case, in which the lower court had upheld against first Amendment challenge the federal law barring foreign individuals (even those living legally in the U.S. but who are not permanent residents) from spending money on U.S. election campaigns or contributing money to them. (There were no noted dissents.)
As I’ve explained, this came to the Court on an unusual procedure: an appeal from a three-judge court. A summary affirmance of an appeal (unlike a simple denial of a writ of certiorari) does have precedential value. In other words, by today’s order, the Supreme Court agreed that the lower court got it right (even if it might not necessarily agree on the precise reasoning in the case).
Is this ruling consistent with Citizens United v. FEC, the case holding that corporations may not be barred from independently spending money in U.S. elections? In Citizens United, the Supreme Court expressly reserved the question whether the foreigner spending ban violated the First Amendment. I have argued, however, that the logic of Citizens United should have led the Court to strike down the foreign spending ban too. But I also predicted that the Court would not do so:
Despite the apparent application of Citizens United’s reasoning to the question of foreign spending limits, I have little doubt that the Court would uphold such limitations even though the foreign spending limit is more severe than the corporate limitation. It is an actual ban, as there is no PAC alternative for foreigners. As I explain in Part III, at least some of the Justices appear to care about public opinion, and the public outcry over Citizens United could well pale compared to a Court decision allowing unlimitedforeign funds in our elections.206 Indeed, it was probably to forestall such an attack after Citizens United itself that the majority added those three sentences keeping the issue open.
So how could the Court sustain a law imposing foreign spending limits without overturning Citizens United?207 The short answer is through doctrinal incoherence. For example, the Court could state that the threat from foreign spending influencing U.S. elections is one different in kind than that posed by domestic corporate spending, and that when it comes to protecting the country from foreign influence, the First Amendment must give way. Or the Court could state that barring foreign influence is supported by the same interest “in allowing governmental entities to perform their functions” that justifies limitations on some political activities of government employees under the Hatch Act,210 an interest the Court reaffirmed in Citizens United. As the last Section showed, neither of these arguments would be convincing under a literal application of the principles of Citizens United, because the arguments are premised on corruption, appearance of corruption, or distortion. Most likely, a majority that would make an argument favoring foreign spending limits would simply ignore the inconsistent parts of Citizens United and move on. In short, there is no reason we should expect a consistent application of Citizens United in the context of foreign election spending.
Thanks to the summary affirmance, the Court majority does not have to explain its doctrinal incoherence.