Bluman v. FEC and the Infield Fly Rule

This morning the Supreme Court summarily affirmed the decision of a 3 judge panel of the U.S. District Court for the District of Columbia in Bluman v. Federal Election Commission, upholding the power of government to bar political contributions to parties, PACs, and candidates from non-resident aliens. The decision was no surprise here or elsewhere.

We doubt that political contributions by Ben Bluman, a Canadian lawyer working in New York, or Anaseth Steiman, a Canadian-Iraeli dual citizen doing a medical residency in New York, would terribly corrupt U.S. elections, and we doubt that either the District Court of the Supreme Court thought so, either. But as we noted in our earlier commentary on the case:

[T]here are reasonable constitutional distinctions that can be made between non-resident aliens and foreign corporations, on the one hand, and resident aliens, citizens, and domestic corporations on the other.

Beyond that, the Court’s opinion is carefully reasoned and takes pains not to allow itself to be misinterpreted, noting that it does not discuss the question of resident aliens, or speech about politics and issues that does not expressly advocate the election or defeat of a candidate, or the barriers to criminal prosecutions.

Professor Hasen claims that the decision is contrary to the logic of the Supreme Court’s 2010 decision in Citizens United v. Federal Election Commission, citing to language in that decision that suggests that the identity of the speaker doesn’t matter. The result, he claims, is “doctrinal incoherence.” But this is only because he insists on reading Citizens United on his terms, rather than the Court’s terms.

There is substantial precedent for holding that non-resident aliens lack all the rights of U.S. citizens. Simply put, Citizens United stands for the proposition that the identity of U.S. citizens and permanent resident speakers was irrelevant to their speech rights. The decision, on its own terms, specifically said that it was not considering the law prohibiting contributions and expenditures by non-resident aliens.

In baseball, one of the most basic rules is that if a fielder catches a fly ball in the air, the batter is out, but if the fielder fails to catch the fly before it hits the ground, the batter is not out unless tagged by a fielder in possession of the ball or “forced out” by a fielder with the ball touching first base before the batter reaches the base.

But there is an exception to this rule, and it is called the “Infield Fly Rule.” Under the infield fly rule, if there are less than two outs and runners on first and second base, or the bases loaded, the batter is automatically out on a ball hit in the air in the infield – even if the infielder doesn’t catch the ball.

No one thinks of the Infield Fly Rule as creating “doctrinal incoherence.” Rather, it is an exception to the general rule, designed to serve a particular purpose (preventing fielders from intentionally dropping balls to set up double or triple plays).*

The core of the Court’s Citizens United doctrine is that U.S. citizens have a right to participate in political life, even if they have adopted the corporate form to undertake their activities. Well known, Lockean principles about the nature of political communities suggest that different rules might apply to persons who are not members of that political community – persons who are mere temporary residents. As Judge Brett Kavanaugh wrote for the lower court, “we also know from Supreme Court case law that foreign citizens may be denied certain rights and privileges that U.S. citizens possess…. The government may exclude foreign citizens from activities ‘intimately related to the process of democratic self-government.'”

Indeed, Bluman is not only compatible with the logic of Citizens United, it is arguably strengthened by the logic of Citizens United, which argued that “if the First Amendment has any force, it prohibits Congress from fining or jailing citizens, or associations of citizens, for simply engaging in political speech.” (Emphasis added.) The opinion consistently speaks in terms of citizens, and democratic self-governance. It does not hold all regulation impermissible, but requires strict scrutiny and compelling government interests, and it finds the government’s case for regulating independent speech by U.S. citizens lacking (again, specifically reserving the question of non-U.S. citizens).

Of course, there are difficult issues that might stem from the combination of Citizens United and Bluman, primarily in the treatment of associations (including both corporations and unions) that include both U.S. citizens and non-U.S. citizens. But while important, that is a problem of factual application, not doctrinal incoherence.

And the infield fly rule makes sense too.