Editor’s Note: This is the second in a series on potential legal gaps exposed by events related to the 2016 election. You can read the first piece on fighting public corruption here.
By now everyone is familiar with attempts by the Russian government and others to interfere in U.S. elections. They hacked into at least 21 state voter registration databases, though there is no evidence they changed any data there or affected any voting or vote counting. Numerous Russian officials tried to gain influence over the Trump campaign, including though an offer to the president’s son, Donald Trump Jr., of dirt on opponent Hillary Clinton. And there were the Russian-funded social media campaigns, some of which spread falsehoods, and others of which just tried to stir up the muck by posting on both sides of divisive issues like immigration, Black Lives Matter/police violence and gay rights.
Understandably, Congress and states are considering whether existing laws are sufficient to proscribe illegal foreign influence in our elections, or if new legislation is necessary. In this post, I want to call attention to perhaps the greatest impediment to effective limits on foreign influence on our elections: the United States Supreme Court.
I begin with a focus on microtargeted and bot-amplified Facebook ads and other online activity, in which Russia and others engaged, aimed at promoting fake news and stirring social unrest in the 2016 election. After investigation, Facebook announced finding at least $100,000 in spending from sources connected to the Russian government on roughly 3,000 ads intended to influence the election. The ads reached at least 10 million people (44 percent before the 2016 election).
Importantly, as I explained at Slate, the Mueller indictment of 13 Russian nationals/entities charged with interfering with U.S. elections did not raise any election law violations.
Indeed, it is clear some of this foreign spending is not currently illegal, and it is uncertain if the courts would allow making most of the spending illegal.
Federal law bars foreign nationals, including foreign governments, from making expenditures, independent expenditures, and electioneering communications in connection with a “Federal, State or local election.” However, it is at best uncertain whether independent online ads that do not expressly advocate the election or defeat of candidates are covered by the foreign expenditure ban. For example, a Russian ad promoting a Black Lives Matter rally, but not mentioning or showing a candidate for office, likely would not be considered an election ad under current law, which does not cover pure issue advocacy even if intended to influence election outcomes.
These advertisements also would not be covered under proposed federal legislation, the “Honest Ads Act,” which would extend rules barring foreign spending on television or radio “electioneering communications” to communications via digital outlets like Facebook. Electioneering communications must feature the name or likeness of a candidate for office to be covered by the proposed law.
Even if Congress passed a statute purporting to make illegal all of the activity Russians engaged in during the 2016 election, such a statute would likely run into First Amendment resistance.
After the Supreme Court decided Citizens United v. Federal Election Commission, a 2010 case holding that corporations have a First Amendment right to spend unlimited sums independently to support or oppose candidates for public office, the Court summarily affirmed a lower court decision in Bluman v. Federal Election Commission. Bluman upheld a federal law barring foreign nationals—in the case of Benjamin Bluman, a foreign national working in New York on a temporary work visa—from spending even fifty cents to print and distribute flyers expressly advocating the reelection of President Barack Obama.
Bluman seems to indicate that, despite tensions with the holding in Citizens United that the identity of the speaker does not matter for First Amendment purposes, the government has a compelling interest “in limiting the participation of foreign citizens in activities of American democratic self-government, and in thereby preventing foreign influence over the U.S. political process.”
But the Bluman court, in an opinion by conservative-libertarian D.C. Circuit judge (and SCOTUS short-lister) Brett Kavanaugh, narrowly construed the foreign spending ban to cover only express advocacy and not issue advocacy. “This statute, as we interpret it, does not bar foreign nationals from issue advocacy—that is, speech that does not expressly advocate the election or defeat of a specific candidate.” Indeed, three FEC Republican commissioners relied upon this dicta from Bluman in voting to hold that the foreign spending ban does not apply to ballot measure elections.
If this interpretation held, foreign governments, entities, and individuals easily could spend millions of dollars to influence U.S. elections without violating a single U.S. election law.
While this interpretation is not free from doubt—the statute is written broadly to cover all expenditures and not just independent expenditures—it seems like the kind of interpretation likely to be favored by the current Supreme Court. Indeed, it is not clear that the courts would accept a more clearly written foreign spending ban going beyond express advocacy and electioneering communications to cover foreign-funded ads meant to stir social unrest without using candidates’ names or likenesses. That’s a problem, because it will allow foreign governments and their allies to freely interfere with American self-government.
As some evidence of the conservative-libertarian position on banning foreign spending, consider the dispute over whether the president’s son, Donald Trump Jr., constitutionally could be prosecuted for the alleged soliciting of Russian government sources for “dirt” on Hillary Clinton, such as emails stolen from the Democratic National Committee.
Professor Eugene Volokh has argued against a broad reading of the statute aimed at preventing foreign interference in U.S. elections, and he has advanced libertarian arguments in favor of allowing foreign nationals (including perhaps foreign governments) to share “information” such as “opposition research” with American campaigns, information which might help the public decide who to vote for in elections.
Using the doctrine of substantial overbreadth, libertarians like Volokh have made arguments that would chip away at limitations on foreign intervention in U.S. elections in the name of protecting free speech. These new arguments in favor of foreign campaign spending follow a decade-long conservative-libertarian all-out push to prevent the Federal Election Commission (FEC) from drafting rules which would regulate more campaign activity conducted via the Internet beyond paid ads containing express advocacy. The fight over Internet regulation has been so fierce at the FEC that former FEC chair Ann Ravel faced death threats.
Even the constitutionality of the disclosure of the foreign sources of some ads could be called into constitutional question. Thus far, the Supreme Court has held that mandatory disclosure of most campaign finance activity in elections does not violate the First Amendment. But conservative-libertarian First Amendment advocates continue to push arguments that such disclosure violates the First Amendment, especially if targeting issue ads like some of the Russian-funded ads that did not specifically name candidates. It is an argument that may ultimately resonate with an increasingly conservative Supreme Court. Right now, there are three Justices (Alito, Gorsuch, and Thomas) likely sympathetic to these arguments, and more Justices with these views may join the Court in the next few years depending upon political developments.
Depending on how the Court rules in future disclosure cases, it may become easier for groups like the National Rifle Association to hide potential foreign contributions used to influence federal elections. (As of now, the scope of the NRA’s legal liability for Russian contributions is uncertain.)
Campaign finance law is not the only area in which government regulation might brush up against the First Amendment. Consider also the laws related to false speech. In recent years, the Supreme Court and lower courts have clarified that many laws attempting to punish false campaign speech may run afoul of the First Amendment.
In cases such as United States v. Alvarez, the Supreme Court made clear that even false speech gets First Amendment protection, and that protection for false speech is especially appropriate when political speech is involved. Alvarez indicates that the proper response to false speech is counterspeech. These precedents properly would stop the government from banning false campaign speech and imposing penalties for publishing it.
Putting the power to ban false speech in the hands of the government is dangerous, especially when there is reason to believe government executives might misuse that power. Just consider how President Donald Trump has called negative, but true, stories about him “fake news.” But there is a danger that counterspeech will not be enough to deal with the flood of bot-driven fake news making it harder for voters with civic competence to separate truth from fiction and make informed voting and policy choices.
For this reason, the First Amendment should not be interpreted to bar the government from enacting carefully drawn laws, which would require social media and search companies such as Facebook and Google to provide certain information to let consumers judge the veracity of posted materials. Outside the political arena, the government presumably has the power consistent with the First Amendment to protect the public by regulating websites to ensure they do not contain false advertising.
When the matters are political, and the line between falsehoods and opinions may blur, it is not clear that such regulation would pass First Amendment muster. Again, the conservative-libertarian reading of First Amendment doctrine might stand in the way of efforts to deal with some democracy problems caused by cheap speech.
They say the Constitution is not a suicide pact. Let’s hope the Supreme Court remembers that when the time comes.
[This article is adapted from a portion of Cheap Speech and What It Has Done (to American Democracy), 16 First Amendment Law Review 200, 216-26 (2018). Full citations to the cases and factual statements below appear there.]