Today’s news reveals that Facebook got money, likely from sources connected to the Russian government, to spend ads likely intended to benefit Trump’s election. Is this illegal?
The issue is complicated and below I reproduce a footnote from my Cheap Speech paper spelling out some of the particulars. But here are the basics:
- Federal law makes it illegal for a foreign individual, entity, or government to pay for ads independently expressly advocating the election or defeat of a candidate (e.g., Vote for Smith). If any Facebook ads did that, it is illegal.
- Federal law makes it illegal for a foreign individual, entity or government to contribute to a U.S. candidate campaign/party. Spending money in coordination with a campaign counts as a contribution. So if a campaign told the Russian entity where/who/when/how to place the ads, that would be illegal, even if the ads did not contain express advocacy. That seems to be the next question for investigators: how would the Russians know where to target the ads?
- The more difficult question is whether federal law prohibits, and if so if it is constitutional to prohibit, spending on elections that do not expressly advocate the election or defeat of a candidate (and don’t count as tv/radio electioneering communications) if those ads are intended to influence the outcome of the election. If the Facebook ads just riled up people on guns but did not mention Trump for example, but were intended to help Trump get elected, can those be illegal? That’s the harder question.
For those wanting more, the footnote is below the fold:
 The statutory argument is complex, but here it is briefly. Spending to influence an election which appears on the Internet but which lacks words of express advocacy cannot count as an “electioneering communication” (which must be a broadcast, cable or satellite communication under 52 U.S.C. § 30104(f)(3)) or an independent expenditure (which must contain words of express advocacy pursuant to the Supreme Court’s decision in Buckley v. Valeo, 424 U.S. 1 (1976), 52 U.S.C. § 30101(17)). The foreign spending ban, however, also prohibits a foreign national, including a foreign government, from making “an expenditure,” § 30121(a)(1)(C), which includes “any purchase…. made by any person for the purpose of influencing any election for Federal office.” §30101(9)(A)(1). Money to pay bots or otherwise to spread fake news on Facebook with an intent to influence the U.S. election would appear to be an expenditure under this definition, but there are two arguments against this interpretation. First, FEC regulations exempt from campaign finance limitations most Internet-based communications except for paid advertisements. 11 C.F.R. § 100.26. It is not clear how much of this Facebook-related activity constitutes a paid advertisement. (It also may be that the FEC regulation exempting much internet-based is impermissibly narrow given the clear statutory definition of expenditure.) Second, in Bluman v. Federal Election Commission, 800 F. Supp. 2d 281, 292 (D.D.C. 2011), aff’d, 565 U.S. 1104 (2012), a three-judge district court in dicta interpreted Congress’s foreign spending ban not to include “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, the 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. Federal Election Commission, MUR 6678, Statement of Reasons of Vice Chairman Matthew S. Petersen and Commissioners Caroline Hunter and Lee E. Goodman at 2 (Apr. 30, 2015), https://www.fec.gov/files/legal/murs/current/110432.pdf.