I’ve already hinted at some of these things in this Politico piece, but I’ve now fleshed it out in the latest draft of my forthcoming First Amendment Law Review article, Cheap Speech and What It Has Done (to American Democracy). Here’s an excerpt, without footnotes, from the revised Part III.A.:
Campaign finance law provides a good example of how First Amendment doctrine and rhetoric may interfere with sensible reforms. Consider the current controversy over microtargeted and bot-amplified Facebook ads and other online activity which Russia and others engaged in aimed at promoting fake news and stirring social unrest in the 2016 elections. 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), and some focused on social controversies over immigration rights, gun rights, and racial justice.
It is almost certain that at least some of these ads do not violate current federal campaign finance law if Russia paid for them independent of anycoordination with political campaigns.74 Further, laws that would bar Russia from placing these ads could well be found at least partially unconstitutional under the First Amendment as the Supreme Court currently construes it. 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.
Even if Congress passed a statute purporting to make illegal all of the activity Russians engaged in during the 2016 elections, such a statute likely would 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 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 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 banning foreign spending inour elections:
“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. It follows, therefore, that the United States has a compelling interest for purposes of First Amendment analysis 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 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.
While this interpretation is not free from doubt—the statute is written broadly to cover all expenditures and not just independent expenditures—it seems 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. These ads should be covered, not because they necessarily contain false speech, but because they constitute a foreign government’s interference 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 Volokh argued against a broad reading of the statute aimed at preventing foreign interference in U.S. elections, and he 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 from drafting rules which would regulate more campaign activity conducted via the Internet beyond what’s been called “paid ads and spam,” with paid ads including only express advocacy. The fight over Internet regulation has been so fierce at the FEC that former FEC chair Ann Ravel faced death threats Others have raised slippery-slope type arguments claiming without evidence that Commissioner Ellen Weintraub’s call to investigate Russian social media spending in the 2016 election would allow the Commission to conduct an “inquisition” of conservative media outlets such as InfoWars, Breitbart, and the Drudge Report.
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 not naming candidates. It is an argument that may ultimately resonate on 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.